Groups across Nova Scotia call for 'drunks can consent' judge to be removed

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A dozen sexual-assault centres, centres for women and therapists are calling on Nova Scotia's chief judge to recommend removing Judge Gregory Lenehan from the provincial bench over comments he made in acquitting a taxi driver of sexual assault this week.

Lenehan said a police officer was right to arrest Bassam Al-Rawi when she found him in his taxi with an unconscious woman whose clothing he had removed. But the judge believed that "clearly a drunk can consent" and that the Crown provided no evidence she had not consented, so he let Al-Rawi go free.

"Lenehan's judgment in this case demonstrates a clear disregard for and lack of understanding of sexual assault and definitions of consent as defined in the Criminal Code. Judge Lenehan has demonstrated he is incapable of fairly applying the law in cases of sexual assault and, therefore, must be removed from the bench," the group wrote in an open letter to media outlets. 

Jennifer Stairs, spokesperson for the Nova Scotia Judiciary, said they've already received at least one formal complaint against Lenehan.

Preparing formal letter to chief judge

The Antigonish Women's Research Centre Sexual Assault Services is preparing a letter to the chief judge on behalf of:

- Antigonish Women's Resource Centre and Sexual Assault Services.

- Mi'kmaw Family Healing Centres.

- Avalon Sexual Assault Centre.

- LEA Place Women's Resource Centre.

- Persons Against Non-State Torture.

- Tri-County Women's Centre.

- Strait Area Women's Place.

- Be the Peace Institute.

- Every Woman's Centre.

- Pam Rubin, private practice therapist.

- Pictou County Women's Resource and Sexual Assault Centre.

- Central Nova Women's Resource Centre.

"As a women's centre and sexual assault centre, we work daily with survivors of sexual assault and know the difficulties women face in going through the criminal justice system," the group wrote.

"Reporting rates for sexual assaults are alarmingly low. Not only does Lenehan's decision impact the complainant in this case, but it discourages women in similar situations from coming forward in the future. We stand with women in calling for justice for sexual assault survivors in our legal system."

Provincial cabinet can remove provincial judges

The group pointed to the same evidence Lenehan used in clearing Al-Rawi, but argued the fact that the woman was highly intoxicated, had urinated on herself and was unconscious when police arrived was evidence "further demonstrating she was too inebriated to be capable of consenting to sexual activity."

The process for asking to have a judge removed is outlined on the Courts of Nova Scotia website. Ultimately, it's up to the provincial cabinet to remove judges.

The group also called on Halifax Regional Municipality's taxi commission to permanently revoke Al-Rawi's licence. HRM said his licence has been in a "non-operation state" since September 2015 and it is looking at revoking or granting him a licence now that the criminal case is done.

Erin Wynn, a staff member at the Antigonish centre, said she's been hearing from sexual assault survivors in light of the ruling.

"Almost any time that you have a ruling like this it's very harmful for survivors of sexual violence to sort of see this re-victimization and this neglect of victim's rights and women's rights and human rights come down from this large systems," she said.

Wynn was participating at a girls conference at Mount Saint Vincent University where consent was a popular topic among girls 12 to 17. The sexual assault case came up.

"Unfortunately there weren't a lot of questions. I think it's because we've seen [cases like] this before.... There was a lot of sadness and anger and sort of disgust. There weren't a lot of questions."

'Survivors aren't being listened to'

Rebecca Stuckey of Dalhousie University's South House Sexual and Gender Resource Centre said the ruling hurt public confidence in the courts. It "really says that survivors aren't being listened to in the judicial system," she told CBC News. 

Diane Crocker is a professor in the department of sociology and criminology at Saint Mary's University.

Last year, she took part in a panel at an international conference on criminal law in Halifax that examined how the Canadian court system handles sexual assault cases.

"One of the things that worries me about quotes like 'a drunk can consent' or 'sometimes people have sex [when drunk] and they regret it' is not just the message sent to survivors, but also the message sent more broadly about consent," she told CBC's Information Morning Nova Scotia on Friday.

"Embedded in those comments are messages about not just the legal standard … but also the social norms about what we expect from one another in those kinds of relationships with people in a position of trust."

'Chilling effect' for women

She said Lenehan's thinking revealed stereotypes about sexual assault cases. "There is an 'ideal victim' and she is not drunk, because she is not someone who drinks and parties and is, in some older legal cases, 'loose.'"

She said ideas about how genders should behave can feature in such thinking. 

"What I see are expectations around consent that I think can easily be gendered. That drunk women are rapeable is a message that can be taken from that. I think that's a message that sends a chilling effect to women who have experience sexual violence," she said. "It's also a message to men about what's possible and what they should be expected to do when encountering a woman."