Canada is in the news these days for the (mis)handling of sexual assault cases.
On Thursday, Robert Camp, a judge who triggered mass outrage in Canada for asking the complainant in a sexual assault case why she could not just keep her “knees together” while she was allegedly being raped, resigned from Federal Court.
To give the former judge full credit for his talent at debasing potential victims of sexual assault, he said a lot more than just that. A report issued by the Canadian Judicial Council provided the following description of Camp’s conduct (it is hard to read but you should still read it):
“That conduct included asking the complainant, a vulnerable 19 year old woman, “why didn’t [she] just sink [her] bottom down into the basin so he couldn’t penetrate [her]” and “why couldn’t [she] just keep [her] knees together,” that “sex and pain sometimes go together […] – that’s not necessarily a bad thing” and suggesting to Crown Counsel “if she [the complainant] skews her pelvis slightly she can avoid him.””
Camp also said that “Young wom[e]n want to have sex, particularly if they’re drunk,” “She knew she was drunk […]. Is not an onus on her to be more careful” and that “sex is very often a challenge” And as if his “she was asking for it” bias was not already evident, he also helpfully referred to the complainant as “the accused” throughout the trial.
Camp also took it upon himself to offer some fatherly advice to the accused (that is, the real accused in the case, not Camp’s wishful-thinking one). This is what he said (I present the full quotes so there is no misrepresentation of what he said, and you can judge for yourself):
- “You’ve got to be very sure that the girl wants you to do it. Please tell your friends so that they don’t upset women and so that they don’t get into trouble. We’re far more protective of women – young women and older women – than we used to be and that’s the way it should be“
- “I want you to tell your friends, your male friends, that they have to be far more gentle with women. They have to be far more patient. And they have to be very careful. To protect themselves, they have to be very careful.”
In its blistering decision, the Council noted that “Canadians expect their judges to know the law but also to possess empathy and to recognize and question any past personal attitudes and sympathies that might prevent them from acting fairly.” Interestingly, and importantly, the Council also noted that “the legal outcome of both the first trial and the new trial is of limited relevance to the issues before [it].” In other words, the Council evaluated Camp’s conduct during the trial, and not his final decision with respect to whether a crime had been committed (although the two may be related, of course). After reviewing the evidence of Camp’s conduct and its effects – including testimony by the female complainant that Camp’s remarks had left her struggling with suicidal thoughts – the Council found that the Judge’s conduct was “so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role” that he had to be fired.
A second story that has received attention in recent days also involves the conduct of an unfit Canadian judge in a rape case. In this case, the judge, Gregory Lenehan, “told a courtroom “clearly, a drunk can consent” before acquitting a taxi driver accused of sexually assaulting a female passenger who was found half-naked and unconscious in his cab.”
This is the background on the story:
“In 2015 a police officer found an intoxicated, unconscious woman in her 20s in the back of a parked taxi…She was naked from the chest down and had urinated on herself. The driver, Bassam al-Rawi, was found holding her trousers and underwear, and was arrested.
Forensic testing revealed the 40-year-old had the woman’s DNA on his upper lip and police said his trousers had been pulled partly down and his zipper was undone.”
Police who were responding to separate incident in the area noticed the complainant in the cab. She had no recollection of the incident. Tests showed that her alcohol level was nearly three times the legal limit for driving. She had also reportedly been turned away from a bar earlier in the evening because she was too intoxicated.
According to Canadian law, if you are unconscious, you cannot consent to sex. If you are conscious but drunk, there is no simple rule to determine how drunk is too drunk to consent to sex. However, the law does say that an extremely drunk but still conscious person can be too drunk to consent. Whether a person granted consent hinges on whether she was able to understand the sexual nature of the act, and to realize that she could choose not to be part of the sexual act. But this rule, while being right in spirit, can still be somewhat vague in practice (e.g., at what point does a conscious person become incapable of granting consent). This practical ambiguity potentially gives a judge significant discretionary power in assessing whether legitimate consent was granted.
In this case, BBC reports that “It took only 11 minutes for the woman to go from hailing a cab and texting her friends to being passed out, according to police.” Asked Elizabeth Sheehy, a law professor at the University of Ottawa: “Where is the line between capacity and incapacity when it comes to consent? Surely, the line is crossed sometime before someone is actually unconscious….It’s kind of hard to believe that she was capable of consent in that very small window [of the 11 minutes that it took her to go from being drunk and conscious to unconscious].”
This piece powerfully summarizes the judges’s error: “An extremely drunk woman cannot consent to sex…Our understanding of consent has evolved but Lenehan’s is woefully outdated. Consent must be affirmative and ongoing. Consent cannot be compromised. A judge presiding over a sexual assault case should know that.” And this: “Rape culture is when women who do the right thing, like taking a cab home when they’re drunk, have to ask for justice from the wrong person.”
The online petition asking for Lenehan’s removal is here and already has over 36,000 signatures. You do not have to be Canadian (or live in Canada) to sign.