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Originally Posted by CliffFletcher
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Sure, and there's places like Liberty University that may expel for premarital sex even with consent or even sexual assault that never occurred. But I was intending to talk strictly legal, and probably should have highlighted this as well:
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what I am saying is that when he has sex with a drunk girl she has not consented legally, that the law by now is clear
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It's not clear. Or if it is clear, it's in the opposite of what is being stated.
https://www.canlii.org/en/ns/nsca/do...ocompletePos=1
This was the appeal by the Crown regarding the disgusting cab driver and the judge who made international headlines for saying "Clearly, a drunk can consent."
The trial judge took the approach that incapacity requires unconsciousness. So even though this woman was found by the police unconscious with a BAC of over .200 and had urinated her pants, because she was conscious entering the cab and the Crown was unable to point out when she lost consciousness (during or after the rape), he used that rationale as to why he acquitted the cab driver.
The appeal goes over just how messy incapacity to consent is and then really reams into the judge for a bunch of mistakes, including his assertion that incapacity requires unconscious but, ironically, his statement of "a drunk can consent" was really only thing the appeal court agreed with him:
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[112] The trial judge’s comment “Clearly, a drunk can consent” received sharp criticism from some quarters. The Crown concedes that the impugned expression is not wrong, but says the judge’s choice of words amounted to an unfortunate personalization of the complainant.
[113] The Crown's concession is appropriate. As detailed earlier, it is well established in our jurisprudence that an intoxicated person may still have the capacity to voluntarily agree to engage in sexual activity despite the expectation that if sober or less impaired they would not have done so.
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Concurring was Saunders who specifically wanted to note:
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[131] When Judge Lenehan said “Clearly, a drunk can consent” he was simply stating the law (see for example: R. v. Jensen, 1996 CanLII 1237 (ONCA); appeal to SCC quashed 1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. A.Q.D., 2002 NSSC 222; R. v. M.A.P., 2004 NSCA 27; R. v. Siddiqui, [2004] B.C.J. No. 2609; R. v. Cedeno (2005), 2005 ONCJ 91 (CanLII), 195 C.C.C. (3d) 468 (O.C.J.); R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698; R. v. J.A., 2011 SCC 28; R. v. Haraldson, 2012 ABCA 147; and R. v. Barton, 2017 ABCA 216). Had he said “a drunken consent is a valid consent” or “intoxicated persons, can nonetheless consent” his words would still have been a proper statement of the law, while, arguably, sounding less personal or harsh. But that is not the reason for reversal in this case, and it is important to say so, just as the Crown has acknowledged in its submissions to this Court.
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In terms of moral reasoning and just plain old good fashioned advice, I'm not intending to disagree with afc wimbledon, just saying that the law is not clear.
But I do think when afc wimbeldon says drunk he probably means to a point of being incapacitated, but this is where our definition of drunk matters. Also I even found that not being able to remember the incident isn't even a legal bar, you can still consent and blackout which is crazy to me.