At 1:09 a.m. a woman got in a cab after being refused entry to a bar because she was too drunk. Eleven minutes later, a police officer found the cab parked on a Halifax street.

The woman was passed out in the back seat, naked from her breasts down, her legs propped up on the backs of the front seats.

The cab driver, Bassam Al-Rawi, had his own pants undone and was trying to hide the woman’s urine-soaked pants and underwear by shoving them between the front seat and the console.

The woman’s blood-alcohol level was found to be three times the legal limit and she had no memory of what had happened.

In a decision that has sparked protests and is now under appeal, Judge Gregory Lenehan acquitted Al-Rawi of sexual assault because, he said, the woman “might well have been capable of appearing lucid but drunk” and it was possible she could have consented to sexual contact before becoming unconscious.

Lenehan’s decision has been denounced by legal experts for ignoring strong circumstantial evidence that points to the woman being too drunk to consent to sex.

It also highlights the ongoing struggle of courts to decide where to draw the line between drunk and incapacitated.

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What is clear is that being sexually assaulted while incapacitated is a real and widespread issue.

A Statistics Canada survey from 2014 found that 633,000 people self-reported being sexually assaulted that year — mostly women. Of those, 9 per cent reported they had been sexually assaulted when they were incapable of consenting because they were drugged or intoxicated.

“This is a very serious problem,” said Lise Gotell, a law professor at the University of Alberta, where she is also the chair of women’s and gender studies. “It is important then that the courts clearly articulate the threshold of incapacity with regard to intoxication. The problem is we don’t have a clearly articulated threshold; the courts have not done that yet.”

In other words, there is no clear legal line beyond which someone becomes too intoxicated to consent.

The Criminal Code states only that a person cannot consent to sex when they are “incapable.”

The result, experts say, is a legal standard for incapacity that is too hard to meet, is applied inconsistently and ignores exploitative behaviour by the accused.

“The test is whether you can understand the risks and consequences of a sexual act and have the ability to understand you can refuse,” said lawyer Angela Chaisson. “It is a really high bar. Only a minimal cognitive capacity is required to consent to sex.”

The courts have found “mere drunkenness does not equate to incapacity, nor is imprudent decision-making, loss of inhibitions or self-control,” she said. Or, as another court decision put it: “a drunken consent is still a valid consent.”

She continued: “We have cases where someone is quite literally falling down drunk or vomiting and that, in and of itself, is not enough.”

It’s also not enough to show that the person is making poor or risky decisions and is vulnerable to exploitation.

In one recent Ontario case, a woman who was too drunk to dress herself and was “zigzagging” was found capable of consenting in part because the court found she was able to understand a concerned caution from a friend and chose to ignore it.

Part of the challenge is that complainants often have no memory of what happened and may not be able to establish their level of intoxication. It may be that the only person who could do so is the accused — who does not have to testify.

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Having no memory of what happened — an alcohol-induced blackout — also doesn’t automatically mean someone was incapable of consenting, courts have found. While blackouts are more common at higher blood-alcohol levels, it remains unclear why they happen and they can involve a variety of factors, such as how rapidly someone was drinking, their tolerance for alcohol and their genetics.

And during blackouts, people can appear functioning, have conversations, make decisions. They may not appear sober, but they may also not appear incapacitated.

Expert evidence from a toxicologist is common in incapacity cases, but that too may not shed much light on whether the complainant could consent at a certain blood-alcohol level because of how differently alcohol can affect people. Courts have repeatedly heard that visible signs of intoxication such as stumbling and vomiting don’t necessarily mean someone is unable to make decisions.

Gotell said one possible change to the law could be “a provision where instead of focusing on consent where a complainant is not able to provide any evidence about how she was thinking or feeling, perhaps we should have a legal standard that permits the Crown to prove coercion by the accused and focus on his predatory behaviour … It is a widespread problem and we do have to figure out a way to allow for the legal recognition of exploitation in these types of cases.”

This could also take into account the power dynamic that may occur in these cases: for instance, if the accused is a position of responsibility, like a taxi driver, or in a position of authority, like a police officer.

University of Ottawa law professor Elizabeth Sheehy said that in the Al-Rawi case, the Nova Scotia Court of Appeal has a chance to bring some clarity to the law.

“Right now it’s like a predator’s paradise,” Sheehy said.

She stressed the importance of including women’s voices in any legal reform.

Many of the notions about capacity and consent “have been developed by male judges and argued by defence lawyers who are men, and women haven’t had much input into the development of these ideas,” she said.

It remains important to ensure judges are not making decisions based on stereotypes about uninhibited “party girls,” ideas that women cry rape when they regret having sex or that women who get drunk are at fault for putting themselves in a vulnerable position.

After reviewing a number of cases, Janine Benedet, a law professor at the University of British Columbia, found a troubling difference between those in which the complainant was drugged and others in which the complainant voluntarily got drunk.

The courts tended to apply a lower standard in cases of involuntary intoxication than when someone was voluntarily intoxicated. In the latter cases, the threshold is near-unconsciousness, Benedet found in her 2010 paper, called “The Sexual Assault of Intoxicated Women.” (The Supreme Court of Canada ruled only in 2011 that a person cannot consent when they are unconscious).

“Judicial education and ensuring that judges base their reasoning on logic, not stereotypes, would help,” said Dalhousie University law professor Elaine Craig.

Diversity on the bench might also make a difference — female judges remain under-represented at both the provincial and superior court levels where sexual assault trials are heard.

Gotell noted that the laws around consent have changed a lot over the past 25 years, but there are still older, male judges with a tendency to overidentify with the accused.

“(They) look at situations and remember times when those situations would not have been considered criminal and remember being engaged in situations like these,” she said.