I could say it’s open season on . . .

. . . women who have a drink, or two, or five — and then claim sexual assault.

. . . women who testify they were slipped an incapacitating rape drug, substances that can’t be confirmed present in the blood stream unless a toxicology screen is run within five to 12 hours, a deadline which can’t always be met.

. . . women who dance in bars with the men they afterwards accuse.

. . . women who willingly go to hotel rooms with men they afterwards accuse.

. . . women who send purportedly humorous emails to a mentoring colleague. “Can I borrow some of your brown charm and brains . . . strawberry blond hair and boobs only get you so far.”

. . . women whose credibility is deemed “imperfect” because they told a small fib to a parent, out of embarrassment or tact, rather than immediately disclose the event. Unlike the honking huge fabrication a suspect imparted to police, insisting under questioning that he never had any sexual relations with his accuser, yet later admitting on the witness stand that he’d lied about that — fearful that his professional reputation would be impugned and his family appalled.

. . . women who assert they were incapable of halting the attack, with no control over their drug-deadened limbs, but sufficiently adept to hit the send button on a text message: one finger. Although the texts were never retrieved by investigators, their contents remain unknown, the recipients unable to recall getting them, and the sender having no memory of issuing any such message. The messages, of course, could just as easily have been a plea for help or the result of inadvertent butt-dialling with no text attached.

. . . women who cannot prove, in the absence of any independent corroboration, they didn’t acquiesce to sex — the one-size-fits-all defence for an accused in sex assault trials: an honest but mistaken belief the complainant had consented, with the onus on the prosecution to convince otherwise.

What happened in a Toronto courtroom Thursday — the acquittal of two male doctors on charges of sexual assault, gang sexual assault and stupefying (administering a drug) — left veteran reporters who’ve covered the lengthy trial stunned, the central complainant angry and her parents in dismayed disbelief.

“I had nothing to gain,” the accuser said in a statement read afterwards outside court by police investigator, Det. Daniel Luff. “I was denied justice today. Sexual predators are out there and need to be stopped.”

Troubling verdict

The takeaway message of this verdict is deeply troubling. Even with a core complainant of impeccable reputation — a doctor herself now, 23-year-old recent med-school graduate at the time of the alleged assault, impressively composed on the stand despite ferocious cross-examination and character assassination, and seeking no financial redress (a civil lawsuit hasn’t been filed) — it wasn’t enough.

Didn’t look staggering drunk or otherwise discombobulated in security video that captured her strolling through the lobby of a downtown hotel in the early morning hours of February 13, 2011.

Couldn’t recall with certainty — at least the matter was disputed — how much alcohol she’d consumed earlier that night, after waltzing off to the C-Lounge on Wellington Street with doctors Amitabh Chauhan and Suganthan Kayilasanathan, the former a friend and (she’d hoped) future co-author on a medical paper, the latter a longtime pal of Chauhan’s she had met just hours earlier.

Didn’t have physical evidence of sexual assault because the first hospital where the complainant went the following day had no rape kits or specialist nurses on hand to conduct a proper examination. There was, however, DNA trace evidence taken from her body and clothing at a second hospital that matched to the defendants, which they testified came from consensual sex that didn’t include intercourse.

In so many integral ways, a case with an ideal complainant, a female judge, a female Crown — and a lead female defence lawyer.

Not enough. Justice Julie Thorburn, in the judge-alone trial — a shrewd choice, electing not to have a jury, and the defendants’ prerogative — concluded there was reasonable doubt that the woman did not consent to sexual encounters that night, and no evidence to support the prosecution’s assertion that the doctors had planned to drug and sexual assault her.

You may have thought we’ve come a long way in the fair trial conduct of sexual assault cases. You are wrong.

Anyone out there pondering a rape charge: Think twice. You will be battered and discredited. You will be put through the wringer on the stand. And you will bang your head against a judicial system without pity, the threshold of proof beyond a reasonable doubt so high that only a virgin nun armed with verifying videotaped evidence, up against the most incompetent of legal counsel, can surmount it in a majority of cases.

That’s the prohibitive message which Crown Cara Sweeny tried to dispel in her media scrum afterwards.

“Obviously the complainant, both complainants, are very disappointed in the verdict.”

There were two complainants in this case, two women whose accusations where separated by eight years and hundreds of miles. Chauhan was also acquitted on the second batch of charges — sexual assault and drugging for the purpose of overpowering and sexual assault — relating to an alleged incident from September 2003 involving a former girlfriend (a fellow graduate from the Royal Military College in Kingston), which she said occurred during an ex-cadets’ weekend. Witnesses gave conflicting dates about seeing Chauhan in Kingston and there was doubt he was even in the country. He denied ever meeting with the woman that month.

Sweeny: “What I wanted to do is use this case to highlight the social aspect of this and the public safety nature of the offence, and put this out as a warning to women, and to men, about the prevalence of this kind of offence, and caution everybody to try to take steps to recognize this offence; recognize the signs and symptoms of drug facilitated sexual assault and to take steps to get to the hospital as soon as possible.

“One of the issues is that commonly used date rape drugs come out of the body within five to 12 hours. In this case, she did make it to the hospital within 11 hours but by the time her blood was tested any trace of drugs was already gone.

“A positive drug test would have changed a case like this entirely.”

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If the standards were already exceedingly high, Thursday’s judgment — read aloud by Thorburn and then issued in an expanded written form, with case law appended — cranked it up further.

“In speaking to the complainant, she is so distraught about what this message will send to other women,” said Sweeny. “She wanted me to convey the message . . . that she came forward not because she had anything to gain, and not to punish anyone, but because she felt it was the right thing to do. She wanted to hold people accountable for what had happened to her. Sexual assault cases are always difficult to prove. The reasonable doubt standard is very high and it’s very difficult, inherently difficult in a drug facilitated sexual assault case because the complainant has no memory of the event or very little memory of the event. And that’s the nature of the offence. It makes it doubly hard.

“I hope women will still come forward. And eventually, if more and more women come forward, the overwhelming tide of awareness will change the way that judges see this kind of offence.”

Considering an appeal

The Crown is considering an appeal.

As always, it’s for the prosecution to present a convincing case. No one takes issue with this central tenet of jurisprudence — that a defendant is considered innocent until the evidence proves otherwise.

But the very subheadings of Thornburn’s judgment show how onerous that challenge can be when a complainant has to rely on her own credibility, memory compromised allegedly by drugs, and the innate imbalance of law, assumptions and social mores:

The Effect of Kayilasanathan’s Lie: “. . . I do not share the Crown’s view that the lie also demonstrates that he was conscious of his own guilt on these charges. There is another plausible explanation: he was lying because he was embarrassed that his father and girlfriend would know that he had been involved in an illicit sexual encounter with another woman. Kayilasanathan expressed to police a good deal of anxiety about the fact that his girlfriend and father would be very upset with him.”

(The complainant’s) Outward Appearance. Leaving the C-Lounge, she did not require assistance, “unchanged” in appearance upon arrival at the hotel.

Whether (the complainant) Would Have Consented to the Incident in the Hotel Room: The woman testified she would never have consented to sex with Chauhan because he was married and she was not sexually attracted to Kayilasanathan.

Then Thorburn itemizes her “givens”: the tenor of those aforementioned suggestive emails to Chauhan, the bar video that depicted the accuser “dancing, drinking and having fun with both Chauhan and Kayilasanathan”, and “the fact (she) did not implement any plan to stay somewhere for the night and instead returned to the hotel room with the accused at the end of the evening when there was no plan to engage in any other activity.”

Whether (the complainant) Consented to the Incident in the Hotel Room: The collective evidence — excessive alcohol consumed over a short period that could have caused her alleged “blackouts” and immobility,” absence of independent corroboration, different accounts given to police of how much she’d had to drink, “leave me with a reasonable doubt as to whether she consented”; if the complainant did not consent, “I accept the evidence of each of the accused that he had an honest if mistaken belief that (she) consented to the sexual encounter because her outward appearance as shown on the video was that of a person who seemed to be in control of her movements.”

And: “Finally, her credibility was not unblemished. For these reasons, I find that the Crown has not met the high onus of satisfying me beyond a reasonable doubt that (she) did not consent to the encounter.”

I could say, in my view, this verdict reinforces the fear that it’s always open season on women subjected to date-rape.

Take care.