Recently, I visited an old Navy friend who’s now at the University of Toronto studying law. We sat around and talked about the issues of the day, namely a cab driver named Bassam Al-Rawi who had been acquitted of sexual assault.
He explained to me, patiently and simply, that our laws say a person can consent while drunk, but not unconscious. Consent is revoked as soon as someone passes out, but there is no legal definition of how drunk is too drunk to consent.
In Al-Rawi’s case, the judge ruled that the victim was blackout drunk so she didn’t know if she consented. The defense put forward this reasonable, but unlikely, narrative: the victim consented to touching while blacked out, but can’t remember. When she passed out, Al-Rawi stopped the touching, because she passed out. Then the cop showed up. This is highly unlikely, but it is a reasonable doubt in the eyes of the law.
All law has something called ‘reasonable person,’ which could have helped in this case. It’s a logical test to determine what a reasonable person could, or should, do in any given situation.
The military uses it to judge whether or not a command is lawful. It’s taught at basic training in a lecture that usually starts with: “Would you kill a baby?”
The gist of the lecture is: members of the military have to follow all orders. Unless, of course, the order is manifestly unlawful. From the Queen’s Regulations and Orders 19.015: “A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example … a command to shoot an unarmed child.”
Outside of a military context, the ‘reasonable person’ could be applied to sexual assault cases.
The courts use a subjective standard for serious offenses. It has to be proven that the person being accused knew or was willfully ignorant of committing a crime. In a sexual assault case, it needs to be proven the physical acts took place and that the intention to commit a crime existed.
The subjective part, the intention, is tricky. For example, the accused can have an honest but mistaken belief that consent was given. Specifically if he believes the victim had consented and he had taken reasonable steps to ensure that it was given.
We already require people to take reasonable steps to get consent. Is it too much to ask that they also take reasonable steps to ensure that consent can actually be given? It would take what happened in the back of Al-Rawi’s cab out of a legal grey area.
It would have played out like this: rhe touching, easily proven with DNA. The victim may have drunkenly consented. But, a reasonable person, taking steps to ensure a victim could consent, would be incapable of reaching that conclusion. What reasonable person would think that a woman could consent if she was to drunk to get into a bar and wet her pants?
‘Reasonable person’ has clear drawbacks: It’s susceptible to manipulation and ad hoc attacks by savvy attorneys. There are legal experts right now fuming at this layman’s description of reasonable person.
It’s embarrassing. The Canadian Armed Forces has a progressive stance on the killing of children. For victims of sexual assault, the criminal justice system does not.