“A drunk can consent.” This statement was said by Judge Gregory Lenhan following a sexual assault trial in Halifax in which he acquitted a man who was practically caught red-handed trying to have sex with an unconscious woman in the back of his taxi. Those four words have caused a public outcry, and a petition signed by 34,000 people is circulating asking for an inquiry into the judge himself.

Apparently, this whole idea of consent is rather confusing. So confusing that a judge, a man that has dedicated his life to justice and the law, thinks that sexual assault is something that can be decided be given without actually being conscious.

I know — I don’t get it either.

To help, let’s actually define the term consent.

Consent, according to the Oxford dictionary, means to give “permission for something to happen.” In the case of a sexual relationship, both parties must clearly agree to a sexual act and each person has the right to say no. Consent should never be assumed or implied. Seems simple enough, right?

What people tend to forget is that consent is continually. At any point during a sexual encounter, a woman or a man may tell his or her partner to stop — and that partner MUST stop. That is the nature of consent.

Therefore, considering that very basic definition, a person who is incapacitated through alcohol or drugs cannot give true consent.

In the Halifax case, the woman was found unconscious in the vehicle vehicle. She was naked and the taxi driver was found stuffing her pants and underwear into the front seat of his car. His pants were undone. The woman had an alcohol level of 241 milligrams per 100 millilitres of blood. This would have severely impacted short-term and long-term memory. Staff at the bar where the woman was picked up said she was incredibly drunk and was turned away at the door. That is when she hailed a cab.

Did I mention that her DNA was found in the accused’s mouth?

All of those details together should have resulted in a guilty verdict. Instead, the judge said there was no way to know whether the woman gave consent prior to her losing consciousness, and therefore the man could not be found guilty.

In essence: “a drunk can consent.”

This verdict verges on the ridiculous and unbelievable — and yet, it does not shock me. It doesn’t shock me because, as a woman, I know the judiciary system is not on my side. I know that, in the event of an unwarranted and unsolicited sexual act, it will take even more persuasion to convince a police officer that it was not my fault. And that’s a real shame.

Using the above definition, it is clear, without a doubt, there was no continual consent in the Halifax case. Even if the woman in the taxi urged the driver to have sex with her, the fact that she was unconscious nullifies whatever consent was originally given. The consent, at that moment, cannot be continual as the woman is not awake to give it.

Let me run through a few other scenarios in which consent is implied, but not actually given:

  1. A woman dresses provocatively, and that implies she is “looking to get some.”
  2. A woman invites you into their house or hotel room following a date, she is implying she wants to have sex.
  3. A woman asks a man if he has a condom. He puts it on. That means that sex is inevitable and what happens afterward is a consequence of that act. No one is allowed to change his or her mind at that point.
  4. A woman is intoxicated and their judgement blurred. That means they are looking for a fun time.

In all of these scenarios, a woman – or a man for that matter – has the right to change their mind and say no. None of these acts should be able to prove consent in the court of law, as consent is continual.

However, in many of these situations, lines are blurred and the judiciary system falls on “implied consent” rather than actual consent. There is also a double standard when alcoholism is thrown into the mix. How many times have you heard the defence say the following: “He was drunk, he didn’t know what he was doing. Let’s not ruin the reputation of this person based on one stupid choice.” The accused is then acquitted. When a victim of sexual assault says they were drunk, it is used to imply guilt and irresponsibility. This should not be the norm in our judiciary system.

That simple four-word verdict “ a drunk can consent” shows an ignorant and naïve understanding of the term itself. I am absolutely distraught and offended that a judge, someone who is in a position of power to determine whether or not a victim of sexual assault was in fact a victim, thinks it’s okay to make such generalized and harmful statements like this one.

Canadian women deserve better. They deserve not to be discriminated against in the court of law. They deserve to feel safe — and this can’t happen unless everyone is taught the real meaning of consent.

Author

Katherine DeClerq is a contributor to Women's Post. Her previous writing experience includes the Toronto Star, Maclean's Magazine, CTVNews, and BlogTO. She can often be found at a coffee shop with her MacBook computer. Despite what CP says, she is a fan of the Oxford comma.