HALIFAX – A Halifax taxi driver has been found not guilty of sexually assaulting a young woman who was found drunk and unconscious in his cab almost two years ago.
Judge Gregory Lenehan ruled in Halifax provincial court Wednesday that the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity with the driver, Bassam Al-Rawi.
The 40-year-old cab driver was charged after police found the woman, in her 20s, passed out and naked from the waistdown in his car in the early hours of May 23, 2015.
The woman testified she had no memory of what happened in the cab, and the judge concluded his decision by saying, “a lack of memory does not equate to a lack of consent.”
The ruling comes days after a judge in St. John’s, N.L., acquitted police Const. Doug Snelgrove of sexually assaulting an inebriated woman in a case that hinged on consent and sparked protests over what consent means under the law.
The Newfoundland ruling has led to protests and calls for rethinking the legal notion of consent.
But one St. John’s lawyer, Allison Conway, has noted that the law as it stands allows that someone who was drunk or can’t remember may still have consented.
In the Halifax case, the woman testified that she had consumed three drinks at a downtown bar late on May 22, 2015. She told the court that the next thing she remembered was waking up in either the hospital or an ambulance, where she spoke with a female police officer.
The judge said the woman couldn’t recall being turned away from the bar after midnight, nor did she recall arguing with a friend, texting others or hailing Al-Rawi’s cab at 1:09 a.m.
“She doesn’t recall any of that because she was drunk,” Lenehan said in his oral decision.”What is unknown is the moment (she) lost consciousness. That is important. It would appear that prior to that she had been able to communicate with others. Although she appeared drunk to the staff at (the bar) … she had appeared to make decisions for herself.”
Lenehan went on to note that intoxication tends to reduce inhibition and increase risk-taking behaviour.
“This often leads to people agreeing and to sometimes initiate sexual encounters only to regret them later when they are sober,” he said. “In testimony, (the woman) could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity … The Crown failed to produce any evidence of lack of consent at any time.”
Court heard that when a police officer spotted the woman in the back seat of the cab at 1:20 a.m., she was lying unconscious with her legs propped up on the two front seats.
The constable testified that the driver was seen shoving the woman’s pants and underwear between the front seats. As well, his pants were undone around his waist and his zipper was down. The woman’s wallet, purse and shoes were in the front passenger area, and her pants and underwear were tangled inside out and wet with her urine, court heard.
The judge said the evidence indicated that Al-Rawi had removed the woman’s pants.
“I don’t not know if Mr. Al-Rawi removed her pants at her consent, at her request, with her consent, without her consent — I don’t know.”
A forensic analyst later determined that the woman’s blood-alcohol level was as high as 241 milligrams per 100 millilitres of blood. At that level, the woman would have had difficulty transferring her experiences from her short-term memory to her long-term memory, the analyst said.
“This would explain why (she) was able to carry on interactions … but then have no memory for much of what happened,” the judge said.
Testing also determined that fluid containing the woman’s DNA was found on Al-Rawi’s upper lip, though the source of that genetic material remained unclear.
“I have struggled to determine what all of this evidence proves,” the judge said, adding that it was up to the Crown to prove beyond a reasonable doubt that the driver violated the woman’s sexual integrity and that it was done without her consent.
Lenehan said the woman would be incapable of giving consent if she was unconscious or was so intoxicated that she was “incapable of understanding or perceiving the situation that presented itself.”
“This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.”