Is consent becoming an arbitrary concept? - Katrina Chanas

Today, I am going to discuss, in length, a topic that is very close to my heart. It is something that is close to my heart as it is a topic that has the potential to affect me personally. As a young female adult, I have the unique position of seeing first-hand how much people tend to consume alcohol in a social environment. Women, and young women in particular, are increasingly encouraged to consume large quantities of alcohol as part of having a “good time”. We all know that women, on average, can become intoxicated faster than men. Modern legal cases have called into question the idea surrounding consent and just how intoxicated one needs to be in order to be deemed too intoxicated to be able to give consent. This raises numerous questions:

• how do we determine intoxication levels;

• what are the signs that someone is not able to give consent;

• do they need to be unconscious; and most importantly

• is consent becoming an arbitrary concept all together?

Let’s start by defining assault and sexual assault. Section 265(1) of the Criminal Code (“the Code”) outlines the offence of assault. The actus reus for assault is the conduct of applying force (indirectly or directly) to another person, in the circumstances of lack of consent from the person who is having the force applied to them. The mens rea of assault is intentionally applying this non-consensual force. Section 265(2) specifies sexual assault is a form of assault, so this actus reus and mens rea apply for sexual assault as well, just with an added “sexual” element. It can be stated that there are three “C’s” for the actus reus of sexual assault: conduct, consequence, and circumstance. “Conduct” refers to the application of force. “Consequence” means the victim had force applied to them. “Circumstances” refers to the fact that there was no consent and assault was of a “sexual nature”. The “sexual nature” element has been left to be determined by the courts. As per R v Chase (“Chase”), a 1987 decision of the Supreme Court of Canada (“the Court”),

Sexual assault is an assault within any one of the definitions of that concept in s. 265(1) of the Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test is an objective one where viewed in the light of all the circumstances, is the sexual or carnal context to the assault visible to the reasonable observer?”

In determining how to define “consent”, section 265(3) states that there will be no consent where a person submits or does not resist because of:

• the application of force to the complainant or to a person other than the complainant;

• threats or fear of the application of force to the complainant or to a person other than the complainant;

• fraud; or

• the exercise of authority.

Consent, as a question of law, is “the voluntary agreement of the complainant to engage in the sexual activity in question”. It must be present during the time that the sexual activity is taking place. As stated in R v Ewanchuk (“Ewanchuk”), as per the Supreme Court of Canada (“the Court”), the state of consent as part of the actus reus is determined by reference to the victim’s subjective internal state of mind. Consent will be negated by the complainant’s fear of the application of force regardless of the reasonableness of the fear or whether it was communicated to the accused. As well, a statement by the victim that she did not consent or did so because of fear will be determinative unless it is found not to be a credible statement of her state of mind at the time the offence occurred. It was also established in Ewanchuk that there is no such thing as the doctrine of implied consent in Canada.

“A comprehensive review of Canadian caselaw involving intoxicated complainants reveals a legal standard that is too low and an evidentiary threshold that is too high”. A woman who was so intoxicated she was “falling down drunk”, vomiting on herself and cannot remember anything that happened, or was unable to dress herself properly is unlikely to be found by a Canadian court to have lacked the capacity to consent to the sexual touching that occurred while she was in this state. These criteria apply unless she was also unconscious. Unfortunately, recent amendments to the Criminal Code’s (“the Code”) definition of consent to sexual touching are unlikely to remedy this failure of the criminal law in Canada. While capacity to consent to sexual touching is frequently characterized by courts as an exclusively factual matter, common law assertions of “just how intoxicated a woman must be” before a court will conclude that she lacked capacity, revealing an underlying policy position regarding the level of protection our criminal law ought to afford intoxicated complainants.

Legal standards of consent are insufficient

I personally have a serious issue with the question of how intoxicated females have to be to not be able to give consent (being unconscious). As it currently stands, it appears the courts are more protective of offenders; the injustice to the victim, often a female, is undeniable. I am a young female who quite enjoys going out with my friends during the summer to have some drinks on a patio or even attend a bar. Based off the article from Elaine Craig, she is stating that, even though it can be clearly demonstrated to the reasonable person that a woman is severely intoxicated and does not have the capacity to consent, in the eyes of the law, the woman is to be held to the standard of a sober person (comparatively) because, without the unconscious element, the woman is able to consent. The idea that essentially a woman needs to be unconscious for her not to be able to give consent is ludicrous and very dangerous. This leaves the very real possibility of sexual assault becoming far more likely due to a lack of punishment of the offender in the judicial system. “The Criminal Code does not define what constitutes incapacity to consent to sexual touching. This leaves it to court to identify and apply the threshold for capacity to consent”. While it is clear that an unconscious individual cannot consent to sexual touching, there is inconsistency and uncertainty about what level of intoxication renders a complainant’s voluntary agreement, or apparent consent, legally ineffective.

The result is that, no matter how severely intoxicated a woman was when the sexual contact occurred, courts are unlikely to find that she lacked capacity to consent unless she was unconscious during some or all of the sexual activity. The most obvious problem occurs in cases in which judges explicitly determine that lack of sufficient evidence of unconsciousness raises a reasonable doubt regarding incapacity. Requiring evidence of unconsciousness as the evidentiary proxy for incapacity fails to distinguish between complainants with lowered inhibitions and loss of inhibitions. As the Court noted in R v WLS, it is an error of law to conclude that nothing short of unconsciousness will amount to incapacity. A legal standard for capacity that is informed by the principles articulated in R v JA (“JA”) should encourage courts to place weight on evidence of outward signs of severe impairment such as loss of gross motor skills, vomiting, loss of bladder control, and significantly impaired speech, instead of relying on unconsciousness as the evidentiary proxy for incapacity. The Court has not yet provided lower courts with clear guidance on how to assess capacity to consent to sexual touching in the context of intoxication. I understand it is difficult to establish a standard that must apply to all Canadians because intoxication is a complex phenomenon. In my social circle, each one of us has a different alcohol tolerance. Taking this variability into account, the Court would have difficulty pinpointing the number of drinks that would be required to constitute being severely intoxicated and unable to make decisions. The standard must be extremely subjective, which always brings up numerous issues and concerns for the public and the judiciary. What if I interpret my friend as being drunk but someone else does not?

The legal standard for incapacity articulated by the Nova Scotia Court of Appeal in R v Al-rawi (“Al-rawi”) is as follows: a complainant lacks the requisite capacity to consent if…the complainant did not have an operating mind capable of:

• appreciating the nature and quality of the sexual activity;

• knowing the identity of the person or persons wishing to engage in the sexual activity; or

• understanding she could agree or decline to engage in, or to continue, the sexual activity.

There are three issues that can arise as a problem of this test. Number one is the standard based on the “nature and quality of the sexual activity” rather than the risks and consequences it presents, which creates an inappropriately low threshold for capacity. “According to its common law interpretation, the nature and quality of the sexual act refers to the specifics regarding the physical act itself”. Second, whether requiring an “operating mind” can or should be equated with a standard of minimal capacity is not self-evident. An operating mind may require more than the minimal capacity needed. Third, a standard that focuses on whether one understands that they can say “yes or no”, rather than on whether one has the capacity to give meaningful consent, encourages courts to conclude that any evidence of non-consent is dispositive of the issue of capacity. A person having the ability to say “yes” does not measure up to consent in my mind. I previously was a bartender at a nightclub and, while I was sober and had the ability to stop serving people alcohol, occasionally the individuals who were clearly intoxicated kept requesting more drinks and had the ability to say “yes one more” to me. Although these people had the ability to say yes, it was evident that they were not in the right state of mind to understand the situation and their level of intoxication. This ability to say “yes” did not constitute the ability to make a meaningful decision. Therefore, in my opinion, that standard in Al-Rawi does not protect severely intoxicated women.

Intoxication and consent

I will now review some cases of sexual assault in which I have significant concerns with the decisions. The first case is a Minnesota Supreme Court ruling which ruled that a person can’t be found guilty of assaulting someone who is mentally incapacitated due to intoxication if the person became intoxicated by voluntarily ingesting drugs or alcohol. Obviously, as a young adult who enjoys social gatherings, this raises extreme concern. I do voluntarily consume alcohol, but that does not mean I consent to sexual assault. One of the solutions that was proposed by a Democratic state representative was legislation to amend the third-degree sexual misconduct statutes to include language that says anyone who is intoxicated, for any reason, is unable to give consent.

There could be arguments made for the degree of intoxication that is required because a little inhibition, to some people, might not constitute a total loss of rational judgement. On the other hand, it could be easier for the judiciary to decide these cases because, if the woman was intoxicated, then she couldn't give consent.

The next case I will discuss is Al-Rawi, mentioned previously. An unsettling comment was made by Judge Gregory Lenehan, which was “clearly a drunk can consent”. The decision provided by this judge at the trial level acquitted a Halifax taxi driver of sexually assaulting an intoxicated passenger found partly naked and unconscious in the back of his cab. The complainant recalled consuming three drinks at Boomers, a drinking establishment, prior to her assault. Her next recollection is speaking with a female police officer at some early hour of the morning of May 23, 2015. She did not recall any events of that night after she entered Boomers because she was drunk. Her blood alcohol level was three times the legal limit for driving. The Crown in Al-Rawi had to establish beyond a reasonable doubt that:

• Mr. Al-Rawi touched the complainant;

• it was in such a way that violated her sexual integrity; and

• the touching was not done with her consent.

In order for there to be consent, the person giving the consent must have an operating mind and they must be of an age responsible enough to agree to the sexual conduct. According to this judge, it did not mean, however, that an intoxicated person cannot give consent to sexual activity. The Crown failed to produce any evidence of lack of consent. There was an abundance of evidence that would permit a reasonable person to believe that Mr. Al-Rawi was engaging in or about to engage in sexual activity with a woman who was incapable of consenting. “The trial judge in Al-Rawi suggested that the accused had a “moral” or “ethical” (but not legal) obligation not to “tak[e] advantage” of the severely intoxicated complainant by “going along” with any flirtation or sexual invitation that the trial judge speculated might have occurred in that case”.

Mr. Al-Rawi was found guilty in the Nova Scotia Supreme Court (“NSSC”) in August 2020. Mr. Al-Rawi’s appeal of his conviction for sexual assault is to be held on June 11, 2021. The significant amount of trauma this woman has endured by, first of all, having been sexually assaulted and then the entire judicial process dragging on for several years, when it should be obvious to the layperson the facts/evidence of what happened, is horrible and further traumatizing for the woman. I have sympathy for every sexual assault victim in this country. Justice should at least, minimally, be served.

Consent standard in need of revision

Men have commonly used intoxicants as a way of increasing their sexual access to women. They have been encouraged to do so by the popular belief that alcohol and drugs increase sexual arousal and that women who drink and take drugs are promiscuous and sexually available. While feminists have repeatedly argued against such stereotypes, they now do so in a social context in which women, and young women in particular, are increasingly encouraged to consume large quantities of alcohol as part of having a “good time”. The risk to young women is incredibly high and that is frightening. There are a few possible solutions that could improve the current situation of Canada. The capacity to assess the risks and consequences of the sexual activity at issue would provide a clearer and more just standard. That standard would be more in line with the Court’s approach in cases like JA and more appropriately protective of intoxicated women’s sexual integrity. A legal standard for capacity that is based on the ability to appreciate risks and consequences must recognize that the level of cognitive ability required to give meaningful consent will vary depending on the context. “The suggestion is not intended to encourage judges to inquire into the advisability of a woman’s particular sexual choices, but rather to suggest that the level of capacity required turns on the degree of risk and the nature of potential consequences” The legal standard applied in sexual assault cases involving severely intoxicated women should require more than the rudimentary ability or awareness necessary to know that sexual contact is occurring and that one could say no. Providing trial judges with a more demanding legal standard would encourage them to give more weight to evidence of severe intoxication short of unconsciousness. Raising this threshold will only be effective if we can eliminate the influence of discriminatory social assumptions and recognize that the sexual predation of drunk women warns the criminal laws censure.

After reading all of this information, I hope it distresses you too. The mere thought that consent is so difficult to prove in court allows for sexual assaults to go under the radar. The courts are implying that it is a woman’s fault for consuming alcohol and if she happens to be sexually assaulted, they virtually cannot prove it. Anyone who has ever been to a bar, restaurant or social environment, where there is alcohol involved, have seen women who have been intoxicated but are still conscious enough to speak. Having the ability to say the word “yes” does not indicate that a person is willing and capable of understanding what someone else is saying. People who are severely intoxicated have no understanding, and often no recollection, of what has transpired. Another concern I want to leave you with is that since sexual assaults are so difficult to prove in court, victims are often fearful and hesitant to come forward. Therefore, sexual assaults tend to be underreported. Why are we as a society punishing the women who had to endure sexual assault rather than punishing the people who commit the terrible act or those who allow it to happen? Let me know your thoughts on this below.