A New Role for Video Evidence – Proving No Capacity to Consent

By |2018-08-15T16:15:26+00:00October 30th, 2016|

The criminal justice system may be finally catching up to existing technology. The recent Ontario decision convicting Moazzam Tariq for sexually assaulting a very intoxicated female victim who was captured on surveillance video is a promising start.

This case was unusual because of the Crown’s use of surveillance video from a bar and a hotel to show the victim’s level of intoxication just prior to her entering a hotel room with the accused. She had little memory of what followed but felt violated when she awoke alone. The fact that the accused had sex with her was confirmed by forensic testing.

While the use of video evidence in this way is novel, the law in this area has not changed. A criminal sexual assault charge can be proved by showing that the victim was incapable of providing consent. That means that if a person was so intoxicated by alcohol (or drugs) that they were unable to consent and if that was readily apparent to the alleged offender, then even if that person said yes to sex, the consent was not valid and any sexual activity that occurred was an assault.

That said, proving lack of capacity to consent due to intoxication has been very difficult in the past. A judge generally would need detailed reliable evidence about the level of intoxication experienced by the victim. An intoxicated person is rarely capable of providing good quality evidence and often no other witnesses were present. The end result – no case. Enter technology. Video evidence can fill that void. As demonstrated by the Tariq case, a judge can feel very comfortable assessing a person’s level of intoxication and capacity to consent by observing a video. In this case the judge was satisfied beyond a reasonable doubt that the victim was so intoxicated prior to entering the hotel room that she would not have been capable of consenting to any sexual activity that followed. The accused was found guilty of sexual assault.

It may seem puzzling that this is a new development given that video evidence is not a particularly new technology. In my view the difference in this case was the way in which the police chose to conduct their investigation. Instead of looking at the circumstances as yet another weak case that lacked sufficient proof, the investigators looked harder. Kudos to the Toronto Police! They must have had to act quickly to retrieve surveillance videos at the bar and hotel in this case, since surveillance video is often over-written after a short period. This police investigation exemplified the compassion, dedication and belief in sexual abuse victims that many survivors have found to be missing in their own experiences with the police.

The implications of this case are encouraging. Survivors can now be armed with the knowledge that video evidence may be admissible in court to prove that they were so intoxicated that they were incapable of consenting. They can refer the police to not only surveillance video but also video taken by friends on smartphones. An improved standard has been set for police investigating sexual offences involving intoxicated complainants.

Of course, the level of intoxication necessary to categorize a person as ‘incapable of consenting,’ short of unconsciousness, is difficult to assess. You can be sure that future criminal cases will be hashing that out. But in the meantime, perhaps that uncertainty is a good thing when it comes to the culture we live in. In my view it’s hard to find a downside to caution being applied when it comes to whether or not a sexual partner is too intoxicated to meaningfully consent. If this court decision gets people thinking about what true consent looks like and the need to be sure, then we as a society have taken a small step on the road to a world without sexual violence.