Trolling suggests I am deliberately making offensive posts in an aim to upset you or make you angry. Having an opinion and defending that opinion in a respectful way is not trolling. You may not be used to that, but that's what's happening here. Trying to belittle my opinion and character by suggesting otherwise says more about you that it does me.
I respect that you have a differing opinion, even though I think it's wrong, but I would never ask you to stop expressing yourself for that reason. This is called healthy debate; if you aren't interested in continuing, agree to disagree, but don't suggest that I'm being inflammatory when I'm clearly not.
It's very common for people to ignore facts and arguments that don't align with their own opinion; I'm not offended or surprised by that. Ultimately, my concern is about correcting the mistakes that were made so this woman gets the justice she absolutely deserves and so we can restore a sliver of confidence in the justice systems treatment of sexual assault victims. The Crown has taken the same position and believes they have the law on their side. I'm positive they are much better versed in the matter than either you or I, so I will defer to their expertise.
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Marginal note: Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
The criminal code does not expressly use the word "drunk", but it does reference incapacity, which being drunk is. The murkiness surrounds at which point incapacity begins, as it's different for all people (and depending on drug and alcohol type). In this particular case, having been denied entry into a bar and only ten minutes later being found unconscious and having urinated over oneself, incapacity is pretty clear.
I agree that the law is murky and if it was easy to fix, I think it would be by now, but I don't think the application of the law in this case is murky whatsoever.
This is taken from the Metro which summarized the judges decision:
"Lenehan said the evidence was concerning, and that the officer was correct to arrest Al-Rawi because "any reasonable person" could believe that Al-Rawi was engaging in or about to engage in sexual activity with a woman who is incapable of consenting.
However, he said in his oral decision that the Crown provided no evidence on whether or not the woman consented to sexual activity.
He said for Al-Rawi to be convicted the Crown had to show beyond a reasonable doubt that Al-Rawi not only touched the woman in a way that violated her sexually, but that it was done without her consent.
Lenehan said a person is incapable of consent if they are unconscious or are so intoxicated that they are unable to understand or perceive their situation."
By his own omission, the judge agreed that the evidence showed the cab driver had or was about to engage in sexual conduct with this woman. The debate then shifts to consent, and any logical person (or anyone that has read the Criminal Code), knows that a drunk person cannot consent to sex. Is this not straight forward enough? Can you not see the error in judgment here? Consent in this case should not have been up for debate, therefore the ruling should have been clear: guilty. That's not emotion. That's logic.
Yes, and the justice system, which is operated by humans, is also prone to error. The law, regardless of how much effort goes into making it clear and consistent, requires interpretation. In this case, I, and many others, believe that an error in judgment was made. There have also been people that have compared this case and it's subsequent ruling to similar cases and found that the outcomes/judgments were different (ie: lesser evidence resulted in conviction). Check out the Halifax Examiner or Tim Bousquet's twitter feed for more information on that.
You're forgetting that she was not the one on trial - the completely sober cab driver was. He, being of sound mind, had and has no excuse for why he engaged in sexual activity with someone that any reasonable person would have known was too inebriated to agree to. If she was committing a crime, I might be inclined to agree with you, but she didn't. She got in a cab because she was smashed and wanted to get home safely and he took advantage of that. I'm not outraged emotionally, I'm outraged logically. I fail to see how any logical person can ignore the culmination of evidence, circumstantial and forensically and through testimony, that this was sexual assault. He was charged with getting her home safely and was instead found by a police officer with his pants down, her pants down and unconscious, away from her home, with her DNA on his face. The logic here is clear: He took advantage of someone that was not in the state of mind to agree to engage in sexual activity. I know consent is a legally blurry concept, but it was balanced by more than enough evidence to reasonably overcome that murkiness.
If you are so drunk that you piss yourself then the idea that "we can't determine if consent was given or not" is a completely moot point. When you are so inebriated that you can't control your bodily functions, I don't think mental capacity can even be debated. Consent CANNOT be given when you are that inebriated. It doesn't matter if he hooked up with her before or after she passed out; SHE WAS TOO DRUNK TO GIVE CONSENT EITHER WAY! His DNA was on her face which means he engaged in sexual activity with her while she was in his cab and the entire time he was in her cab, she was incapable of agreeing to that. It is really that simple. There is more than enough evidence to substantiate that. Interpreting the evidence, circumstantial or not, is what a judge is supposed to do and in this case, he had more than enough evidence to reasonably assume that the cab driver sexually assaulted this woman. He, for whatever reason and despite there being clear evidence that something illegal took place, chose not to convict. You may not think that sends a signal to people about just how far they can go without consequences, but it does. It certainly tells women that they aren't safe, even when they try to be safe.
There are standards in law, and it boggles my mind that this is even a debate, that being drunk negates your ability to enter into contracts. Whether it's an agreement to have sex or signing a legal document, a drunk person cannot do it; they have diminished capacity. That contract would be ruled invalid in a courtroom. The difference for a drunk driver is that they have the ability to plan in advance for a safe ride home and the potential results of their actions (drunk driving) are significantly more severe than if you signed a contract for a new cell phone while drunk. I get that people think this is a blurry subject matter because most of us have gotten drunk and hooked up with someone, but the truth is, we shouldn't be so scared to clearly define consent just because it might require us to think twice before drunk banging a hottie at the bar.
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I respect that you have a differing opinion, even though I think it's wrong, but I would never ask you to stop expressing yourself for that reason. This is called healthy debate; if you aren't interested in continuing, agree to disagree, but don't suggest that I'm being inflammatory when I'm clearly not.
It's very common for people to ignore facts and arguments that don't align with their own opinion; I'm not offended or surprised by that. Ultimately, my concern is about correcting the mistakes that were made so this woman gets the justice she absolutely deserves and so we can restore a sliver of confidence in the justice systems treatment of sexual assault victims. The Crown has taken the same position and believes they have the law on their side. I'm positive they are much better versed in the matter than either you or I, so I will defer to their expertise.
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Marginal note: Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
The criminal code does not expressly use the word "drunk", but it does reference incapacity, which being drunk is. The murkiness surrounds at which point incapacity begins, as it's different for all people (and depending on drug and alcohol type). In this particular case, having been denied entry into a bar and only ten minutes later being found unconscious and having urinated over oneself, incapacity is pretty clear.
I agree that the law is murky and if it was easy to fix, I think it would be by now, but I don't think the application of the law in this case is murky whatsoever.
"The Crown will be appealing the verdict by Judge Gregory Lenehan in the taxi sexual assault case involving Bassam Al-Rawi.
Denise Smith, the deputy director of Nova Scotias Public Prosecution Service, made the announcement in a release issued Tuesday.
We have conducted a legal analysis of the judges decision and have concluded there is a solid basis to appeal the ruling, she said."
Logic. Not emotion.
"Lenehan said the evidence was concerning, and that the officer was correct to arrest Al-Rawi because "any reasonable person" could believe that Al-Rawi was engaging in or about to engage in sexual activity with a woman who is incapable of consenting.
However, he said in his oral decision that the Crown provided no evidence on whether or not the woman consented to sexual activity.
He said for Al-Rawi to be convicted the Crown had to show beyond a reasonable doubt that Al-Rawi not only touched the woman in a way that violated her sexually, but that it was done without her consent.
Lenehan said a person is incapable of consent if they are unconscious or are so intoxicated that they are unable to understand or perceive their situation."
By his own omission, the judge agreed that the evidence showed the cab driver had or was about to engage in sexual conduct with this woman. The debate then shifts to consent, and any logical person (or anyone that has read the Criminal Code), knows that a drunk person cannot consent to sex. Is this not straight forward enough? Can you not see the error in judgment here? Consent in this case should not have been up for debate, therefore the ruling should have been clear: guilty. That's not emotion. That's logic.
There are standards in law, and it boggles my mind that this is even a debate, that being drunk negates your ability to enter into contracts. Whether it's an agreement to have sex or signing a legal document, a drunk person cannot do it; they have diminished capacity. That contract would be ruled invalid in a courtroom. The difference for a drunk driver is that they have the ability to plan in advance for a safe ride home and the potential results of their actions (drunk driving) are significantly more severe than if you signed a contract for a new cell phone while drunk. I get that people think this is a blurry subject matter because most of us have gotten drunk and hooked up with someone, but the truth is, we shouldn't be so scared to clearly define consent just because it might require us to think twice before drunk banging a hottie at the bar.