Day of Blogs

A Calgary court recently ruled, essentially, that one does not have the right to not be raped if they willingly consumed alcohol . . . even if one is only 14-years-old and given said alcohol by an adult man for the purposes of raping her.

Having sex with a drunken 14-year-old he had plied with alcohol was not a criminal offence by former Calgary man, a judge ruled yesterday.

Justice Peter McIntyre said there was insufficient evidence the girl didn’t consent to having sex with Trevor Byron Niebergall.

But McIntyre did find Niebergall guilty of sexual assault for placing his genitals on the girl’s face after she passed out — an act the offender captured on his cellphone camera and showed to co-workers.

McIntyre said the fact the teenage complainant didn’t remember her sexual encounter with Niebergall at a December 2005 New Year’s Eve party did not mean she hadn’t consented.

He noted one witness said she appeared to have the capacity to consent when she and Niebergall went to a washroom in his brother’s apartment, where they had sex. And the Queen’s Bench judge said the girl willingly consumed large amounts of alcohol supplied by Niebergall even after he made lewd sexual comments.

Yup, that’s the argument. Entirely. The girl willingly drank, so tough shit. And no, I’m not even doing what amounts to extremely easy interpretation here. The judge made it even more explicit. (emphasis mine)

She said on three occasions the accused said he would drink with her if she performed a sexual act on him.

“The accused’s lewd comments towards her did not compel her to leave,” the judge said. “The complainant was not forced to consume alcohol — she drank … beer willingly and then switched to alcohol. It is not at all clear why she drank so heavily.“

First of all you fucking jackass, beer is alcohol. I believe you meant “liquor.” In any case, it’s irrelevant. The point here is that she drank heavily, the man who raped her had previously made inappropriate comments towards her, so the fact that she drank around him after said inappropriate comments means that she must have consented. I guess the act of drinking alcohol itself counted as the consent! (Of course, sadly many people do actually believe this, and it does indeed seem that the judge was among them.)

All of this is despite the fact that the same rapist was convicted of sexually assaulting the same victim while she was passed out from the intoxication — because of his own photographic evidence.

Niebergall, then 19, showed photographs of the teen, naked and passed out, to co-workers the following day, bragging he had had sex with her six times.

But in his testimony he said they only had sex twice, one in the bathroom and later when other partygoers had left and both times with her consent.

McIntyre said because the girl drank so heavily and had little recollection of events at the party, he could not accept her claim she didn’t agree to have sex.

“Her evidence was not reliable after she started drinking,” he said.

Crown prosecutor Susan Kennedy said a 45- to 60-day jail term is warranted for the incident which occurred after the teen passed out.

That’s right, 45-60 days in the slammer is “appropriate” for placing your genitals on the face of a 14-year-old girl when she is passed out from the alcohol with which you plied her, further photographing her naked while she was unconscious and therefore without her consent, and then showing said photographs to all of your buddies. Of course it fucking is. After all, she willingly drank, didn’t she?

As Janfromthebruce said in the comments at Marginal Notes, in response to the argument that 14-years-old was the legal age of consent at the time of the rape, “This isn’t actually about age of consent, but about the CAPACITY TO CONSENT.”

Thanks to Matttbastard for sending the link — he has more at Shakesville.