Walk a Mile in Her Shoes

Noooo! This is not good! Extreme intoxication is still self-inflicted! Even if the intoxicated person claims they did not choose to commit a crime, they still chose to get intoxicated.

Safe sex or is it safe to have sex? After my last short post on distributing intimate images, my inbox was inundated with questions from the public about tha...t specific topic, but also a few requests to continue writing more articles. So, I’ve decided to dedicate time to informing the public about criminal law topics that are hopefully of interest and also informative. I’ve had several of these types of cases over the years and it always seems to shock me on how misinformed individuals are when it comes to the law of sexual assault (or the old legal term rape). Instead of writing out a bunch of numbered sections from the Criminal Code of Canada that define what sexual assault is, it may be easier for the purposes of this article to explain its definition in common sense language. In its broadest terms, sexual assault is all unwanted non-consensual activity. The term non-consensual is an important part to understand. It is necessary because sex must be consensual and both parties must be capable of consenting to sexual activity. No still means No when it comes to sex. In fact, the law suggests that a person can revoke their consent at anytime during sexual activity. To be blunt, it makes zero difference whether clothes are on or off and things are getting hot and heavy. If you hear No, Stop, I don’t want to anymore or words to that effect and you ignore the requesting party, you have likely committed the offence of sexual assault. A few other examples include of non-consent are: 1. A person under the age of 16 cannot consent to sexual activity. There are some exceptions when the sexual partner is a few years older, but not several years older. 2. A person cannot be asleep. 3. A person can not obtain consent from a third party. Note: (I usually see this with high school and university students when one friend tells another that a certain person wants to have sex and is waiting in a room for him/her). Despite these seemingly common sense examples, the one I see in roughly 90% of the cases that come through our doors is: 4. A person cannot consent to sex if they are intoxicated. Crazy, right? Not really. Don’t get me wrong, a romantic night out with your lover and a few bottles of wine isn’t necessarily going to get you in trouble with the police, but it could. In fact, having sex with someone who is too drunk to consent can land you in federal prison. The starting point in New Brunswick is generally 3 years in jail. Let me give you an example. I recall representing a man a few years ago that was charged for this crime. He had gone to a local bar with some friends where they randomly met a group of women. The two groups shared drinks and danced throughout the night together. Witnesses said my client and the woman he met immediately hit it off. When they danced they would grind against one another. They were seen kissing several times on and off the dance floor and both were described by onlookers as constantly groping each other. At the end of the night, the bar emptied and both my client and the woman he met got inside a cab and decided to go back to his house for more drinks. When they arrived at his home, they each had one mixed drink and found themselves in his bedroom. Sexual activity occurred. The next morning, both woke up undressed in his bed. They talked about the dancing and drinking the previous evening, and only briefly spoke about the sex they had. There was no mention at that time about her unwillingness to have sex or her inability to consent because of her state of intoxication. She called a cab and left his house without exchanging telephone numbers or a commitment to hang out again. It was a one night stand. Later that day, she went to the hospital to see a sexual assault nurse examiner for examination and the police were called to report the incident. She had reported to the SANE nurse that she couldn’t recall much about her sexual encounter because she was highly impaired. The local police investigated the matter and my client was arrested. Lawyers from The Burke Law Group were hired to defend him from the criminal charges. A three day trial was held where the ultimate legal issue for the judge to decide centred on the credibility of each party - in other words whose story the judge believed. The judge found my client not guilty. He avoided jail based on the facts and various testimonial inconsistencies of the complainant. This time my client was acquitted. However, there have also been cases where a client has been convicted where it could be clearly established the other party was incapable of consenting to sexual activity because of their level of intoxication. So, let this be a sharp warning to those who mix alcohol and sex. It can happen to anyone when their libido is weaker than the libations. Safe sex isn’t just limited to wearing a condom. It also means ensuring your partner is capable of consenting to sex. T.J. Burke, Q.C. *****note: this article is not legal advice but only intended to give readers an overview of the law on sexual assault. Each case is different on its set of facts and may result in an acquittal or conviction****

May 25. 2018 Walk a Mile in Her Shoes(R) to benefit the South East Sexual Assault Centre. Photos by Douglas Mullin Photography. Tag those who were involved!

WOW!! #grateful #tellementfiers. #stepupMoncton #jemavanceMoncton

Sur la route du retour. / On their way back.

Everybody is still standing. / Tout le monde suit la cadence.