Saturday, February 18, 2017
On intoxication and consent
Before we get to that, this is what's known so far through evidence presented in court. The constable saw the complainant on a street downtown. She was intoxicated He offered to drive her home. She accepted. After that, the woman says, everything is hazy. She vaguely remembers the officer helping her in through a basement window because she couldn't find her key. She evidently let the officer in the house. Then things go pretty well blank, although she has a fragmented recollection of him engaging in anal sex. And the man's DNA was found on her furniture.
Let all that sink in for a second.
Can anyone honestly disagree this man lacks the moral fortitude to be an officer of the law? You can picture any number of similar situations arising downtown. Men and women, highly intoxicated, lunging at or flirting with each other. Along comes an officer, tasked with serving and protecting the public. It's not clear whether she was sexual flirtatious or not, but even if she was, she's surely not the first person to have been so with a police officer late at night. I imagine it's a regular occurrence. And I would expect any officer on duty to exercise the utmost professionalism and to respect the delicacy of the situation. He (or she) has no business trying to pursue a perceived opportunity in that situation. None whatsoever.
So, yes, this cop is a creep. That's a given.
What the trial is about, though, is whether he's a rapist. While on the surface it may seem so to many people, it's up to the court to establish his culpability under the Criminal Code.
There is a lot of confusion swirling around the issue of sexual assault, and women's advocates have been understandably reiterating some of the important facts in the wake of this controversy.
The main one is that a rape victim is a victim. You can't blame a victim for rape. It is the rapist's fault. This may seem obvious, but experience shows many victims are prone to blaming themselves in the wake of an assault. Did I accidentally lead him on? Was it something I said? Perhaps I shouldn't have gone out so late. Maybe I should have resisted more.
This us why so-called victim-blaming is such a lightning rod. Every now and then you'll hear a judge say something to the effect that the complainant "should have kept her knees together." The fact that such attitudes persist is what leads many advocates to say we live in a rape culture. Sometimes I feel that term is a little overused. But the fact that men are still frequently excused and even exonerated for bad behaviour proves we have a long way to go.
At any rate, here's the headline that caused the storm.
It's not the best headline. It seems to belittle the complainant: Oh, I get it, she was really loaded – well that just says everything now, doesn't it!?
I understand that some may make that inference. It's a knee-jerk response. It's blaming the victim, isn't it?
Except it isn't.
The headline describes exactly the thrust of the testimony in court. The complainant said she has some memories from earlier in the night in question, but doesn't recall consenting to sex.
She was downtown. She was drunk. Heck, almost everyone is drunk downtown at that time of the night. So this is not victim-blaming. It's just a fact.
The question is whether she was too drunk to consent. And if her testimony is to be taken on face value, she was.
(An important sidebar here: simply being intoxicated is not sufficient to prove lack of consent. I've seen several people say this in the past day, and it is wrong. Check the criminal code. The level of intoxication here is key. If you draw a complete blank as to the previous night's events, that's a pretty good sign you were not capable of given consent, according to its legal definition.)
Another factor that may play into this case is that of the authority of the defendant over the complainant. He was a police officer; she was his charge, at least at the time he was giving her a ride. That may be a factor in deciding whether here was a necessary "level playing field" as such for consent to have occurred.
The bottom line is this: the court decides.Don't prejudge the trial until it gets properly underway and the main themes come out.
You can still advocate for victims without letting it blind you against the essential tenets of our justice system.