CLN4U0 Culminating Task Research Essay
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April 1st, 2021
Ms. Barrow
CLN 4U0 Culminating Task Research
Essay
Drunkenness and Mistaken Belief in Consent
Sarah A Bowen
Drunkenness and Mistaken Belief In Consent
Culminating Research Essay
By: Sarah A Bowen
The law concerning rape and intoxicated consent is controversial and
problematic in regards to the decision for the defendant and the victim. Given the
mistaken belief of consent or not, you are still bringing your actions upon another
human being. Being under the influence can alter an individual's mood, motives and
personality. Rape is considered as “sexual intercourse at the time when the defendant
knows the victim does not consent to intercourse or is reckless to it…”
("Sexual Assault
and Other Sexual Offences - An Estimation of the Economic Impact of Violent Victimization in Canada,
2009", 2021).
The definition of consent under s.74 of the Sexual Offences Act states that
“if a person agrees by choice, has the freedom and capacity to make that choice.”
("Sexual Assault and Other Sexual Offences - An Estimation
of the Economic Impact of Violent
Victimization in Canada, 2009", 2021).
Agreeing to engage in sexual activity while under the
influence is not considered valid, by doing this you can detrimentally affect the accused,
and lead to an unjust conviction for a crime the defendant believed they did not commit.
Anyone who commits a sexual assault act is responsible/guilty of, liable to imprisonment
for a term if not more than ten years, or if the complainant is under the age of 16 years,
to imprisonment for a term of not more than fourteen years.
("CanLII Connects'', 2021).
Or,
an offence punishable on summary conviction is liable to imprisonment for a term of not
more than eighteen months, if the complainant is under the age of 16, imprisonment for
a term of not more than two years less a day to a minimum punishment of imprisonment
for a term of six months. There are many signs that individuals wanting to engage in
sexual activity may not pick up on while asking for consent. Given permission sober and
granting consent while intoxicated are two completely different situations. Even if an
individual is aware that they have been indicated that they have consent while both are
under the influence, can still lead to a sexual assault case if not careful. Being under the
influence in any circumstance is not a valid decision when it comes to part-taking in
sexual intercourse.
Firstly, Individuals seeking authorization for sexual activity may not notice a
variety of signs when asking for permission. This can be very regrettable if uneducated
about the laws of consent and rape. Is sex always nonconsensual when people have
been drinking? The answer is no.
(Friedrichs, 2016).
However, if someone has been
drinking, it becomes harder to consent to another person or determine that a partner
has successfully given permission for sexual intercourse.
(Friedrichs, 2016).
To go into
detail, Bethany Simpson expresses that “alcohol affects the ability to communicate
clearly, people may be more likely to willfully disregard messages that are being sent if
they have been drinking.”
(Bethany Simpson, 2016)
. With this being said, alcohol can give
you tunnel vision, which can make an individual more determined to get something they
are focused on, and can cause aggressiveness. This highlights that some signs that are
predisposed are not always noticed by the other person wanting to engage in sexual
activity. Unfortunately, this can lead to a sexual assault case very easily. Next, the
special case R. v Daviault, the accused arrived at the complainant's house with a
40-ounce bottle of brandy (SCC Cases, 2021). The complainant drank a glass, and fell
asleep
. (SCC Cases, 2021)
. It should be noted that the accused was a chronic alcoholic
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and consumed mostly the entire bottle of brandy and in addition, eight beers
(SCC Cases,
2021)
. Experts testified that this amount of consumption can cause death or coma in the
ordinary person
(SCC Cases, 2021)
. The victim awoke to go to the bathroom and the
accused threw her on the bed and sexually assaulted her, he denied ever completing
these acts due to memory loss
(SCC Cases, 2021)
. The trial judge acquitted the defendant
by virtue of his extreme intoxication possessed the minimal intent necessary to commit
the offence of sexual assault
(SCC Cases, 2021)
. Quebec Court of Appeal overturned this
decision and substituted a conviction
(SCC Cases, 2021)
. Furthermore, on August 25th
2017, local Queens student Chance Macdonald was sentenced to two years probation
along with 88 days of intermittent jail time on weekends for assaulting a 16 year old
victim almost two years prior to his sentence
(Queens Student Avoids Sexual Assault Charge,
Convicted of Commn Assault, 2017)
. The assault occured in early October 2015 during a
“rookie party” for the Qananoque Islanders junior hockey team, held in the university
housing district
(Queens Student Avoids Sexual Assault
Charge, Convicted of Commn Assault, 2017)
.
It was discovered that the victim raped, repeated rude comments and intrusions from
several of the male hockey players that night
(Queens Student Avoids Sexual Assault Charge,
Convicted of Commn Assault, 2017)
. Macdonald who was 20 years old at the time, requested
to have a threesome with the victim, and forced himself on her
(Queens Student Avoids
Sexual Assault Charge, Convicted of Commn Assault,
2017)
. In cases like this, sadly it is easy to
understand that alcohol plays a leading role in our actions and if we are not careful in
what we do or say, it could end up in a situation similar to Macdonalds.
Receiving consent from a partner while sober and receiving permission when a
partner is under the influence are two completely different situations. As it becomes
clear that society, more specifically in this generation are utterly confused about how
much alcohol consumption influences the idea of consent. An example being, Vera
Vertegaal speaks on her first experience with rape. In her story she shares details about
how her sexual assault occured, and events leading up to the assault. She states that
“him and I were both equally intoxicated, although I had intentions of participating in
sexual activity when I was sober, that quickly changed when I lost control of my speech
and actions.
(Vertegaal, 2021)
. She also made it clear that she did not give consent to her
assaulter. He assumed that since Vertegaal was interested in him before being
intoxicated, he believed that she would not care, and give permission to sexual
intercourse when she was under the influence. She adds “he became aggressive
toward me to the point where I was fearful, I fought against him and tried to get him off
of me. I heard him laugh at me in my attempt to fight back.”
(Vertegaal, 2021)
. With this
experience being shared, it is clear that mistaken belief in consent can lead to
traumatizing experiences for some victims. Our society needs to become more aware of
what counts as valid consent, and what does not. Next, another primary example that
supports this argument is, a student at UC San Diego College made the news after he
was suspended following the schools determination that he committed sexual
misconduct
(Friedrichs, 2016)
. This was discovered when the school was informed that he
had “non-consensual sex” with another student when both were heavily intoxicated
(Friedrichs, 2016)
. He sued the school and won on the bias that he had not been given a
fair trial by the college. Whether this student felt like he had a fair trial or not, what both
parties described of the incident was a clear reminder that individuals are not properly
educated on the tricky topic of consent, as the victim said that she was “too drunk to
give proper consent” while the defendant exclaims that he attended the Universities
trainings on alcohol awareness and sexual misconduct
(Friedrichs, 2016)
. He declares that
he was very aware of the need to make sure that anytime engaging in sexual
intercourse was consensual
(Friedrichs, 2016)
. Moreover, many men falsely believe that
alcohol increases sexual arousal and legitimates nonconsensual sexual aggression
(Carleton, 2021)
. Leading perpetrators to perceive that women who drink are more
“sexually available”
(Carleton University, 2021)
. Feminist have repeatedly argued against
such sterotypes. Ultimately, all feminists agree that rape is wrong, often ignored,
mischaracterized, and legitimized. Activists have challenged the myth that rape is “rare
and exeptional”, showing that it is infact a common experience in the lives of girls and
women. Studies of alcohol consumption among young women show a relationship
between alcohol and sexual behaviour, although researchers distingished between
unplanned sexual intercourse, and sexual assault
(Carleton University, 2021)
. A Harvard
study reported that 21 percent of respondents indicated that they have participated in
unplanned sexual activities one or more times during the school year after they had
been drinking
(Harvard, 2008)
. From these observations, it is concluded that a fair amount
of teenagers are not properly informed about consensual sex, and whether or not it is
considered sexual assault.
Finally, consent is a topic that is easily misunderstood as it does not directly
relate to desire, but to willingness and this can vary in degrees. Even if an individual is
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aware that they have given authorization for sexual activity while both participants are
under the influence, it can still possibly lead to a sexual assault case if not careful. To
illustrate, The Sexual Offences Act 2003 itself refers
to “only involuntary intoxication,
where it will be presumed that there was no consent if the defendant supplied the victim
such substances without their knowledge.”
(Herring and Cremona, 2020).
We do know that
administering substances with the intent that it will enable the victim to be overpowered
for purposes of sexual activities is a crime in itself
(Herring and Cremona, 2020)
.
Furthermore, in 1992 Canada made some progressive amendments to their rape law,
stating that if the accused’s belief in consent was based on their intoxication, it is not a
defence
(Herring and Cremona, 2020)
. Author Jordan Casey states that men and youth are
more likely to engage in risky drinking behavior. “17.9% of youth drinkers participate in
excessive drinking and 15.8% of males participate in excessive alcohol consumption.”
(Casey, 2015)
. These numbers can be alarming when having intentions of engaging in
sexual activity. With this being discovered, legally if you are the person that has
consumed alcohol, you cannot consent to sexual intercourse even if it appears that you
may not be under the influence
(Carleton University, 2021)
. In addition, Carleton University
in Ottawa Ontario conducted a study on their students with mistaken belief of consent.
52 percent of students who drank alcohol in the last twelve months reported doing a
particular act that they later regretted, forgot where they were or what they did, had
unprotected sex, sex without consent, or experienced some form of harmful
consequence from their drinking
(Carelton University, 2021)
. These statistics demonstrate
how uneducated society is when understanding the definition of consent.
In conclusion, as discussed sexual assaulters cannot be justifying their excuses
whether that be exposed to violence as a child, viewing sex as forceable, endure
traditional steroptypes, or being heavily under the influence. If someone seems
uncomfortable or tense in response to asking for consent, it should be understood that
they are most likely not comfortable with engaging in sexual activity. Granted permission
for sexual intercourse while sober, and intoxicated are two seperate understandings of
consent. If an individual has allowed the act of sexual intercourse while under the
influence can still lead to a sexual assault case if that individual is not in control of their
speech, nor their actions. After going into depth of the topic “mistaken belief in consent”
the information exposed demonstrates that mainly adolescents are not fully aware of the
distinction between consensual sex and sexual assault. It is also illustrated that alcohol
consumption is being used as a “valid” excuse in perpetrators because they are simply
trying to avoid charges, or are just completely unaware of the risk of engaging in sexual
intercourse while heavily intoxicated. Society as a whole needs to further understand
the true definition of consent and avoid situations where sexual assault may occur. 1
and 4 women experience sexual violence once in their lives
(Carleton University, 2021)
. This
is simply not acceptable. The problem discussed highlights the frequency of sexual
assaults involving intoxicated victims and represents the question of how substances
affect consent. With the frequency of intoxication and desired sex, it is hard for a simple
solution to be available.
References
CanLII Connects. (2021). Retrieved 26 March 2021, from
https://canliiconnects.org/en/commentaries/38557
Decisions and Resources - SCC Cases. (2021). Retrieved 26 March 2021, from
https://scc-csc.lexum.com/scc-csc/en/nav.do
Friedrichs, E. (2021). 5 Questions About Alcohol and
Consent You're Too Afraid to Ask,
Answered. Retrieved 26 March 2021, from
https://everydayfeminism.com/2016/05/alcohol-and-consent-questions/
Office, S. (2021). Sexual Assault & Drinking - CU Don't Know. Retrieved 26 March 2021,
from https://carleton.ca/cudontknow/sexual-assault-drinking/
Sexual Assault and Other Sexual Offences - An Estimation
of the Economic Impact of
Violent Victimization in Canada, 2009. (2021). Retrieved 26 March 2021, from
https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr14_01/p10.html
So Is Being Drunk A Defence For Sexual Assault Now?.
(2021). Retrieved 26 March 2021,
from
https://www.refinery29.com/en-ca/2020/06/9860218/intoxication-defence-sexual-assaul
t
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Why has the Concept of Consent Proven So Difficult to Clarify? - Bethany Simpson, 2016.
(2021). Retrieved 26 March 2021, from
https://journals.sagepub.com/doi/10.1177/0022018316639104
Queen’s student avoids sexual assault charge, convicted of common assault. (2021). Retrieved
29 March 2021, from
https://www.queensjournal.ca/story/2017-08-31/news/queens-student-avoids-sexual-assault-cha
rge-convicted-of-common-assault/