Teen girl too drunk to consent to sex: Languish?

[Josephus]

Here's the story.

http://www.theglobeandmail.com//news/toronto/teen-girl-was-too-drunk-to-consent-to-sex-at-beach-party-toronto-judge-rules/article34929177/?cmpid=rss1&click=sf_globe

Two teens have sex after a beach party where alcohol gets consumed. Boy gets charged. What's Languish's take?

A teenage girl who was in and out of consciousness and had vomited on herself was too drunk to consent to unprotected sex with another intoxicated teen at a beach party last year, a Toronto judge said in finding the boy guilty of sexual assault.

Both teens had been drinking with friends for some time and had kissed briefly that April 2016 night, and the boy, who was 15 at the time, testified the girl then asked him to have sex with her by some rocks, according to court documents.

She, on the other hand, recalled little of the evening and only learned what happened through text messages and social media the next morning, the documents said.

Friends testified during trial that the girl, who was 14 at the time, was drunk to the point of having difficulty walking and talking, with one friend expressing concern she would choke on her own vomit, it said.

The boy was also drunk but not as much, they testified. He told the court he did not believe alcohol had affected his behaviour but noted a friend had commented on his level of intoxication, the documents said.

In a decision released last week, Justice Kimberley Crosbie said she rejected the boy's version of events and his assertion that he did not believe the girl was too drunk to consent to sex.

The boy was "either reckless or wilfully blind to (the girl's) lack of capacity to consent," Crosbie said.

"They drank while walking to the streetcar and while on the streetcar. Further, when they got to the beach and soon thereafter sat down near the bonfire, they continued drinking. It is simply not possible that he was unaware that she was drinking a lot of alcohol," she said.

What's more, at the time when he claimed to be having consensual sex with her, the girl was in and out of consciousness and had already thrown up, the judge said.

"In these circumstances, it is incumbent on a person to ascertain that they actually do have a voluntary agreement to engage in the sexual activity in question," she said.

Instead, the boy "forged ahead, knowing there existed a danger or risk that she was too drunk," Crosbie said. "Further, he was aware of a need for some inquiry but he did not wish to pursue the truth – he preferred to remain ignorant."

Neither teenager can be identified under law.

Court heard the teens and their friends pooled their money and asked strangers to buy them alcohol at the LCBO, according to the documents. They then made their way to an east-end beach, where they joined a group of older teens at a bonfire.

The boy and the girl had known each other for a few months but weren't close, court heard. They talked at the bonfire and kissed a bit, the documents said.

The girl did not testify at trial but her interview with police was entered as evidence. In it, the girl said she could remember a shadowy figure she believed to be the boy approach her and she thought they had kissed. The next memory she had was of pulling up her pants and seeing him walk away, she told police.

The following morning, the girl woke up to a text message telling her that she and the boy had "had sex," court heard.

She called out to her mother, and the two went to the hospital, court heard. After talking with her mother, the girl decided to file a report with police, which led to charges against the boy.

[Solmyr]

Don't have sex with someone who is black-out drunk. It's not complicated.

[Monoriu]

I agree with the judge.  A reasonable person should conclude that it is next to impossible to obtain clear consent from the girl under the circumstances.  Therefore, he should refrain from having sex with the girl until clear consent can be established.  That he went ahead anyway suggested that he tried to take advantage of her. 

[Josephus]

Yeah, but the argument can be made that he was pretty drunk too, and thus not able to make a sound decision.

[grumbler]

Don't have sex with someone who is black-out drunk. It's not complicated.

Since that wasn't the case here, whether your scenario is complicated or not is moot.

Situations like this are complicated by a number of factors.  Is it possible to establish mens rea in a case like this?  Is the girl really not at all legally responsible for the situation she found herself in (it's legally all the guy's fault)?  Is there more evidence than presented here that allowed the judge to reject any reasonable doubt that he thought he was engaged in lawful sex?

My reaction to the guilty verdict is different if this is a juvenile conviction; I think it might be salutatory.  If this is an adult judgement, then I think it is extreme.

WTF is a 14-year-old girl doing getting blind drunk in any case?  Aren't there people who have some legal obligation to care for her and try to make sure that she isn't involved in such activities?  Same for a 15-year-old boy.

As an aside, the judge sounds like an absolute ass.  I hate judges that deliver sermons rather than verdicts.  I find myself doubting their ability to be dispassionate about their judgments.

[Josquius]

Though I agree with not having sex with people who are black out drunk there's too much power with women in these situations. Way too easy for them to call rape if they have buyers remorse.
Not sure of a decent solution though. A bit harsh to blood test the girl if she has just been raped.  And what if the guy was also black out drunk.

[mongers]

A considered and reasoned decision, I think that's all you can ask for of a judge.

[crazy canuck]

Yeah, but the argument can be made that he was pretty drunk too, and thus not able to make a sound decision.

His own testimony removed the possibility that the judge could find he was too intoxicated to be culpable. 

He told the court he did not believe alcohol had affected his behaviour

Is the girl really not at all legally responsible for the situation she found herself in (it's legally all the guy's fault)? 

You would have a judge rule that if a 14 year old girl gets drunk she takes the risk of having sex without consenting to it?

wow, just wow.

[Malthus]

Decision seems reasonable based on the version of the facts reported.

The boy claimed he wasn't incapacitated by booze; the evidence apparently shows that the girl was. Therefore, he had the requisite capacity for mens rea and she lacked the capacity to give consent: therefore, he's guilty.

Could be that the facts as reported aren't correct. Assuming that they are, the verdict seems reasonable.

[grumbler]

Is the girl really not at all legally responsible for the situation she found herself in (it's legally all the guy's fault)? 

You would have a judge rule that if a 14 year old girl gets drunk she takes the risk of having sex without consenting to it?

wow, just wow.

  This is the only interpretation you could place on my comment, and you claim to be a lawyer?

Wow.  Just wow.

[Barrister]

Don't have sex with someone who is black-out drunk. It's not complicated.

Since that wasn't the case here, whether your scenario is complicated or not is moot.

Situations like this are complicated by a number of factors.  Is it possible to establish mens rea in a case like this?  Is the girl really not at all legally responsible for the situation she found herself in (it's legally all the guy's fault)?  Is there more evidence than presented here that allowed the judge to reject any reasonable doubt that he thought he was engaged in lawful sex?

My reaction to the guilty verdict is different if this is a juvenile conviction; I think it might be salutatory.  If this is an adult judgement, then I think it is extreme.

WTF is a 14-year-old girl doing getting blind drunk in any case?  Aren't there people who have some legal obligation to care for her and try to make sure that she isn't involved in such activities?  Same for a 15-year-old boy.

As an aside, the judge sounds like an absolute ass.  I hate judges that deliver sermons rather than verdicts.  I find myself doubting their ability to be dispassionate about their judgments.

Girl was in and out of consciousness and had vomited on herself.  Sounds like "black out drunk" to me.

It is possible to establish mens rea.  For policy reasons Parliament has ruled that voluntary intoxication can not negate mens rea - you are responsible for your own actions after consuming alcohol or drugs.

Personally, girl definitely did put herself in a vulnerable situation.  If I were her parent or guardian, I would have a long chat with her.  That however in no way reduces the guilt of the accused.  It may be foolish to leave your front door unlocked, but that doesn't make it okay to come in and burgle your stuff while you're out.

This would be a youth court decision given the ages involved.  Sentences are wildly different than adult court.  That being said the standard for a finding of guilt is exactly the same.

The quotes attributed to Justice Crosbie sound perfectly reasonable to me.  Judges have an obligation to explain their verdict and not just blankly say "guilty".

[crazy canuck]

Is the girl really not at all legally responsible for the situation she found herself in (it's legally all the guy's fault)? 

You would have a judge rule that if a 14 year old girl gets drunk she takes the risk of having sex without consenting to it?

wow, just wow.

  This is the only interpretation you could place on my comment, and you claim to be a lawyer?

Wow.  Just wow.

Ok, keep digging.  What legal liability do you think the girl should have in this context?

[Berkut]

Yeah, but the argument can be made that he was pretty drunk too, and thus not able to make a sound decision.

His own testimony removed the possibility that the judge could find he was too intoxicated to be culpable. 

Is a 15 year old boy qualified to testify on his own judgement while intoxicated?

[crazy canuck]

Yeah, but the argument can be made that he was pretty drunk too, and thus not able to make a sound decision.

His own testimony removed the possibility that the judge could find he was too intoxicated to be culpable. 

Is a 15 year old boy qualified to testify on his own judgement while intoxicated?

That was his testimony and there does not appear to be any evidence led by the Defense to suggest his level of intoxication impaired his ability to make his own assessment.  There may be cases where that is true but apparently this was not one of them.  Judges have to makes decisions based on the evidence presented to them, not on what might be the case.

[Berkut]

Don't have sex with someone who is black-out drunk. It's not complicated.

Since that wasn't the case here, whether your scenario is complicated or not is moot.

Situations like this are complicated by a number of factors.  Is it possible to establish mens rea in a case like this?  Is the girl really not at all legally responsible for the situation she found herself in (it's legally all the guy's fault)?  Is there more evidence than presented here that allowed the judge to reject any reasonable doubt that he thought he was engaged in lawful sex?

My reaction to the guilty verdict is different if this is a juvenile conviction; I think it might be salutatory.  If this is an adult judgement, then I think it is extreme.

WTF is a 14-year-old girl doing getting blind drunk in any case?  Aren't there people who have some legal obligation to care for her and try to make sure that she isn't involved in such activities?  Same for a 15-year-old boy.

As an aside, the judge sounds like an absolute ass.  I hate judges that deliver sermons rather than verdicts.  I find myself doubting their ability to be dispassionate about their judgments.

Girl was in and out of consciousness and had vomited on herself.  Sounds like "black out drunk" to me.

It is possible to establish mens rea.  For policy reasons Parliament has ruled that voluntary intoxication can not negate mens rea - you are responsible for your own actions after consuming alcohol or drugs.

This is the part I don't get.

If you are responsible for your own actions, then how is SHE not responsible for consenting to sex while drunk?

I don't understand this - if two drunk people have sex, how is it that only one of them is responsible for the actions they both engaged in, presuming she wasn't actively saying "NO" or making it clear she did not wish to have sex?

I am not trying to place the blame on her, I am just trying to understand how there can be what looks like such an obvious double LEGAL standard here.

The law says you are responsible for having sex with a woman while drunk. OK, I get that.

The law says that you cannot consent to sex with a man while drunk. OK, I am ok with that as well.

I just don't know how they work together in a reasonable manner.

If he had said he was drunk and didn't remember anything, does that change the outcome? According to your rule above, it does not. He is still responsible.

If she had said she was drunk, and DID remember agreeing to sex, does THAT change anything? According to the rule about not being capable of consent while drunk, it would seem that would not change anything either.

So in a situation where both people are drunk, and they have sex, have they both committed a rape?