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Sexual assault trials are high-stakes affairs for those on both sides of the allegation. These cases are notoriously complex, especially when substance use is involved. This week, the defence for Toronto police officers accused of sexual assault produced video evidence that raised questions for jurors and the general public alike.
During closing arguments, the defence showed a video of an intoxicated man being led into a hotel by his friend. The man, who is one of the accused in the case, was barely able to stand. Further video evidence showed the alleged victim leaving the hotel upright with no apparent issues. The defence argued that under Ontario law, the alleged assailant was the one who was unable to consent based on his intoxicated nature.
Understanding the capacity to consent is an issue with which many courts struggle. According to the criminal code, a person with “incapacity” cannot consent. However, the criminal code does not define capacity. While sex with an unconscious person is understood as sexual assault, varying states of consciousness are not definite. This leaves the interpretation of these rules largely in the inconsistent hands of judges and juries.
This is an issue often faced in sexual assault cases, where drugs and alcohol are a common theme. Recently, several grey areas have been presented in cases across Ontario. Among these is the issue of consenting complainants who lack memory of the night before due to alcohol consumption. In the case of the Toronto police officer sexual assault trial, the alleged assailant being more apparently intoxicated than the alleged victim has added complexity to the case.
Sexual assault is a serious issue, but it can also be a complicated one. When drugs and alcohol are involved, additional complexities arise. In order for justice to be served, competent lawyers are required on both sides. While evidence can be limited in cases such as this, a lawyer can help make sense of the evidence that does exist and present the jury with a fair trial.
Source: CBC News Toronto, “Capable of consent? Toronto police sex-assault trial highlights problems with determining incapacity“, Trevor Dunn, Jun 24, 2017