How to Get Away with Rape in Canada: Just Make Sure Your Victim Is Drunk

by Matttbastard

[Trigger warning.]

Polly Jones of Marginal Notes puts it succinctly:
The message is loud and clear: don't drink or you can be raped without consequence.

And, it makes no difference if you're a 14-year-old girl who is assaulted by an adult male.
Think she's being facetious? Welcome to Calgary, Alberta, Canada, circa 2008:
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.
Say what?! Hold on—it gets worse:
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.
Yes, that's right—the fact that the victim blacked out due to intoxication shouldn't lead one to conclude that she was in no condition to consent to sexual intercourse. *blink*
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.

…"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."
How dare she: What's next—truancy? Disrespecting her elders? Why, she's careening down the road to moral ruin without wearing a seatbelt!
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.
Uh huh. Taking pictures of a 14 year old. Passed out. After raping her.

Butbutbut she was drinking underage; please, let's keep things in perspective.

Ok, back to Justice Petey McDipshit:
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.
Once again: The judge made his ruling because the victim couldn't prove a negative—that she hadn't consented to sex with Niebergall because she was too fucking wasted at the time to subsequently remember what happened. There's something utterly wrong with this picture. And utterly wrong with the following, too:
Crown prosecutor Susan Kennedy said a 45- to 60-day jail term is warranted for the incident which occurred after the teen passed out.
45-to-60 days in jail for rape production and distribution of child porn sexual assault? Nice to see that courts outside of Ontario also possess a high regard for the value and safety of morally wayward wimmins. Here's hoping Niebergall gets 45-to-60 days, instead of just 1.

And of course we can't have a post on rape without a rape apologist (or minimizer, anyway) showing up in comments: Meet upstanding Canadian conservative Dickie Evans:
uummm... This took place back in 2005. If memory serves, the age of consent wasn't raised from 14 to 16 until the spring of 2008. Back then it was completely legal for this pig to have sex with that little girl after getting her drunk.

For that, you have to blame the [Liberal Party of Canada] and [New Democratic Party of Canada] because it was their opposition to a raise in the age of consent that had things held up for so long. Had the issue been addressed by the other parties, back in 1999, when it was brought up by Reform Party MP's, the subject of your post could have been charged and convicted with statutory rape instead of walking away with a simple slap on the wrist...

Blame the pig, yes, but save a little blame as well, for the left half of the political spectrum who thought that it was "OK" for the age of consent to remain at 14. Because of them, the pig was able to do what he did legally.
To repeat (and expand upon) the comments I left at Polly's place:

1. Not 'have sex with'. Raped. Full stop.

2. Not statutory rape.


Full stop.

Despite what Justice McIntyre said in his decision, the fact that the victim was stinking, steaming drunk means she wasn't in any condition to knowingly consent to anything. Oh, and production and distribution of child pornography was, as far as I know, still illegal back in 2005. Although I suppose underage imbibing by a 14 year old delinquent negates that statute, too.

3. IANAL, but since when is it legal for an adult to knowingly serve alcohol to a minor, or take advantage of a woman (whether she's 14 or 44) when, again, she is too intoxicated to grant consent (thus making it, y'know, rapefull fucking stop? Sorry, Dickie, but strawman arguments wrapped in Reform green about teh EVUL GRITS AND NDP (AGE OF CONSENT!!!1 SQUAWK!!1) are an unnecessary distraction from the one pertinent issue at hand: a 14 year old was raped and this fucking asshole, Trevor Byron Niebergall, fucking got away with it. That is all that fucking matters.

Ok, all bitter snark aside—I am absolutely spitting mad. I can't believe that, in this day and age, a Justice would spout such utter claptrap—and allow his apparent misogyny to override adherence to the Criminal Code of Canada. Ok, I can believe it (this is not the first time a judge in Canada has engaged in secondary victimization, nor, unfortunately, will it be the last) but I am damn sure disgusted and outraged by this horseshit.

This decision, complete with 'why didn't she X' victim blaming, is a fucking disgrace. Justice Peter McIntyre has serious head-up-ass issues with regards to women and the law. He has no business being on the goddamn bench.

(Again, my utmost thanks to Polly Jones for taking the time and effort to uncover this.)

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