Sexual Assault and Consent in the Eyes of the Law
(The author of this piece has asked to remain anonymous)
Trigger/Content Warning (TW): This article will cover topics related to sexual assault
If you search the hashtag #metoo on Instagram, you’ll get 2.6million post results. If you search #consent, you’ll get 258,000. I’ve re-posted and forwarded so many informative posts that I thought would be valuable to my followers without hesitation; without checking whether those facts were actually correct (Askew, 2018). Until recently, I had thought that someone couldn’t give consent if they were intoxicated. That’s what I had always heard from my friends, what I had always seen on social media. But according to the Canadian Criminal Code (Government of Canada, 2015), that’s not correct. Consent can be given while under the influence. We all know social media can twist our perceptions of reality and that we need to take what we see on it with a grain of salt, however, it’s difficult not to subconsciously internalize this information anyways. There are so many grey areas in the law that we’re misinformed about, this is just one of them.
You may be aware of a recent trial of a former Queen’s student who was accused of sexual assault. He was found not guilty and has since been acquitted of the charges. I was shocked at the outcome given the evidence, including the alleged victim being too intoxicated to remember what happened and the accused student sending text messages stating, “I knew she was too drunk”. So why wasn’t he convicted? According to Judge Allison Wheeler, there wasn’t enough evidence that the alleged victim lacked the capacity to consent and that it wasn’t consensual (Rupnik, 2020). You’ve likely heard the phrase “guilty beyond a reasonable doubt”. It’s the principle our criminal justice system operates under, and it means there must be near-absolute certainty that the accused is guilty. It’s what makes sure the accused isn’t wrongfully convicted, but it also makes conviction of certain crimes, like sexual assault, extremely difficult.
For it to be considered sexual assault, the complainant must be incapable of consenting to the activity, however, what constitutes incapacity isn’t clear under the Criminal Code (Hasham, 2019). According to Janine Benedet, a professor at UBC and the leading scholar on the topic, courts want an intoxication level that’s high enough for the victim to have minimal memory of what happened but not so high that it’s unreliable (Doolittle, 2017). The issue with this is individuals who are deemed incapacitate are often unable to remember the events and whether they gave consent. We see this in the case involving the former Queen’s student. Ambiguous and contradictory laws like this are a factor in what causes so few convictions.
Out of every 1000 sexual assaults, 33 are reported to the police and only 3 lead to convictions. That’s just 0.3% (Johnson, 2012). With little chance of conviction and the emotionally taxing legal process, it’s rare that cases involving alcohol and drugs continue beyond a police investigation. Concrete evidence, which is near impossible to find in most sexual assault cases, is necessary for a criminal conviction (Garossino, 2014). There are a countless number of cases that have been dismissed because of this.
With 21% of university students having had an unwanted sexual encounter in their lives, it’s essential to understand how our legal system handles these cases (Canadian Federation of Students, 2015). We need to recognize the discrepancies between the information presented to us on social media versus what actually happens in a courtroom. It’s also important to understand the implications of our legal system and that it’s not perfect. Our criminal system ensures justified convictions, but it also creates mass reluctance in victims to report or press charges. The justice system was designed to provide fair and just treatment for all, although sometimes, the outcome seems to be quite the opposite.
Askew, L. (2018, July 14). Social Media As a News Source - Reliability of News on Social Media. Retrieved from https://miappi.com/reliability-of-social-media-news-source/
Doolittle, R. (2017, March 17). The problem with consent: Sex-assault cases and intoxication. Retrieved from https://www.theglobeandmail.com/news/investigations/unfounded-too-drunk-to-consent-how-alcohol-complicates-sex-assault-cases/article34338370/
Canadian Federation of Students. (2015, Spring). Sexual Violence on Campus.
Garossino, S. (2014, December 29). What Kind Of Woman Won't Report Sexual Assault? Retrieved from https://www.huffingtonpost.ca/sandy-garossino/jian-ghomeshi-women-report-sex-assault_b_6059124.html
Government of Canada, D. (2015, January 07). A Definition of Consent to Sexual Activity. Retrieved from https://www.justice.gc.ca/eng/cj-jp/victims-victimes/def.html
Hasham, A. (2019, December 03). When is someone too drunk to consent? A Toronto trial shows how Canadian law doesn't really answer that question. Retrieved from https://www.thestar.com/news/gta/2019/12/03/when-are-you-too-drunk-to-consent-a-toronto-trial-shows-how-canadian-law-doesnt-really-answer-that-question.html
Johnson, H. (2012). Limits of a criminal justice response: Trends in police and court processing of sexual assault. In Sheehy, E. Sexual Assault in Canada: Law, Legal Practice, and Women’s Activism. Ottawa: University of Ottawa Press, pp 633-654.
Rupnik, C. (2020, August 18). Former Queen’s Student Found Not Guilty of Sexual Assault. The Queen’s Journal.