Standard of proof not met in rape case

Drunk people can consent to sex, judge points out

A judge ruled last week that evidence presented in the case of a man charged with rape and indecent assault did not make her sure of the man’s guilt.

The defendant, who chose to be tried by judge alone, was found not guilty. The alleged victim had said she was too drunk to have consented to sex.

Justice Marva McDonald Bishop warned the defendant: “I am letting you go because the law says I have to if I entertain reasonable doubt, but I do so with a strict warning – a very strict warning that if you had done that to the girl, you make sure that you never repeat such behavior because you will pay one day. You will pay.”

The prosecution’s case, presented by Crown counsel Neil Kumar, was that the woman did not have the capacity to consent to sex because she was so affected by alcohol that she was unconscious or close to that state throughout the incident.

The Crown alleged the defendant knew or was reckless to the fact that she was not consenting, and any belief held by him that she was consenting was unreasonable.

Defense attorney Crister Brady argued that the evidence against his client was unreliable, not credible and not supported by the medical report submitted. The judge summarized the evidence of the young woman, who listed the six different alcoholic drinks she had at a club on the night of the incident.  Other evidence suggested that she may have been less inhibited than usual, the judge noted.

Although the woman said she was drunk and out of control, she made a conscious decision to get out of her girlfriend’s car because she wanted something to eat before going home, and then got into the defendant’s car.

“I have nothing on which I could find that up to that time the complainant was unconscious, semi-conscious or had no control over her faculties so as to make a proper choice,” Justice McDonald Bishop said.

Once in the car with the defendant, the woman said she probably fell asleep or passed out. The charge of indecent assault came from the man’s own evidence that he had touched her in the car with her consent. He said she was “throwing herself” at him.

When they got to the man’s home, the woman said she was unconscious and was led or assisted into the house. However, she gave specific descriptions of the surroundings. She detailed the intercourse that took place and said the man did not use a condom.

The doctor who examined her did not find any bruising, laceration or redness to indicate force had been used, the court heard. The judge said she found it odd that the medical evidence did not support any finding of force.

“It is a difficult matter, I must say, because I am mindful that this young girl could have been taken advantage of in the situation she was in, but I’m not satisfied that she had lost all faculties based on what she was able to tell the court and the police.

“I am also guided by the law that even when persons are drunk, they can nevertheless consent to sex. ” she said.

The judge said she found it curious that there were many things the woman was able to relate, but when it came to real material issues, she was not able to provide convincing assistance to the court.

“The medical evidence has really been a problem for me in resolving this case in favor of the prosecution,” she said.

The judge told the defendant she had to follow the law and the dictates of her conscience.

“I prefer to see a guilty man walk than send an innocent man to prison for a long time. You are being acquitted because the case that is presented by the Crown has not reached that standard that causes me to be sure in the pit of my stomach that the complainant is reliable enough for me to state a guilty verdict on her evidence,” she said.

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