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The Palpable Misinterpretation of the Law of Capacity to Consent

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In 2017, public outrage erupted over the sexual assault acquittal of a Halifax taxi driver after the media headlines denounced the judge for saying “clearly, a drunk can consent.” The Nova Scotia Court of Appeal confirmed that Justice Lenehan was correct in law, though his wording could have been better chosen, but the public continues to believe that the judge was wrong.


When the Nova Scotia Court of Appeal sent Regina v. Al-Rawi back for retrial they confirmed that “it is well established in our jurisprudence that an intoxicated person may still have the capacity to voluntarily agree to engage in sexual activity despite the expectation that if sober or less impaired they would not have done so.”


While it is well established that a person who is unconscious cannot consent to sexual activity, the point at which capacity to consent is vitiated by intoxication remains highly misunderstood.  Simply being intoxicated and making reckless choices does not make someone incapable of consenting to sexual intercourse.


The “consent culture” being taught to university students does not align with the law on capacity to consent.  While a person must be capable of understanding the sexual nature of the act, only a minimal cognitive function is required.


For example, Carleton University’s website suggests to students on consent training – that “Legally… if the person you’re with has been drinking, they can’t consent to sex (even if they don’t appear to be intoxicated)” and further assert incorrectly that only a “sober” person can consent to sexual activity.


This common misperception about the law due to misinformation campaigns, which are happening at all universities, causes many people to believe what happened to them was a sexual assault when, in fact, they gave legal consent.


The damage done by this misunderstanding of the law is devastating both to the accused and the complainant.


The law of capacity to consent may be still underdeveloped but has consistently maintained, as is the case with Al-Rawi, that only minimal cognitive capacity is required. A lack of memory does not preclude legal consent, it only proves that a complainant cannot remember if she/he consented, and the surrounding events.


Many complainants who find themselves in this situation discover through multiple witnesses that they were doing many uncharacteristic things that night, of which they have no memory. This can include finding out things like dancing on a table, singing at a karaoke bar or possibly waking up in a stranger’s bed who they normally would not find attractive.


Cases where even extreme intoxication exist are rarely successful in court where it can be shown that the complainant voluntarily consumed the alcohol and remained a conscious, active participant throughout the sexual activity.


Men accused of sexual assault where mutual intoxication was involved are often demonized as predatory. This unfair characterization denies the fact that only a complainant knows how drunk she is and, often, not until much later.


It is unfortunate that these cases are increasingly coming before the courts instead of making efforts to properly educate people on the law and spare complainants from the inevitable path down the criminal justice road.  Further, it denies personal responsibility for their own actions despite their intoxication and steps actively taken during the impugned sexual event.


As cited by the Nova Scotia Court of Appeal in Al-Rawi, the accepted law on intoxication and consent remains the same:


“Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self-control. A drunken consent is still a valid consent.” [citations removed].


It is vital that concern for addressing sexual assault allegations not become the crucible in which we skew the law and misinform the public.  Individual responsibility is paramount, and a clear understanding of the legal parameters of what constitutes lack of capacity to consent as a  crucial factor protecting against wrongful convictions that cause damage to the parties involved; to our justice system, and to our society at large.

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