Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, November 13, 1994 TAG: 9411150036
SECTION: NATIONAL/INTERNATIONAL PAGE: A-12 EDITION: METRO
SOURCE: The Washington Post
DATELINE: TORONTO LENGTH: Medium
Lawyers citing their client's intoxication in a spouse-abuse case last week won the first acquittal on those grounds since Canada's highest court gave its qualified endorsement of the defense at the end of September.
An Alberta man charged with criminal assault against his wife claimed successfully that he could not be held accountable for his actions after ingesting 80 ounces of liquor, 12 beers and prescription drugs during a 30-hour period. In that state, an expert witness told the provincial court, he was ``like a robot.''
Emily Paradis of the Concordia University Women's Center in Montreal said the Supreme Court ruling ``opens up the process of appeal for every rapist and assaulter of women in the country, as the vast majority of assaults are committed under the influence of alcohol.''
Paradis said, ``It's outrageous that you can be found guilty if you get behind the wheel of a car, but not if you assault a woman.''
The Supreme Court decision beginning to draw fire vacated the conviction of a 72-year-old Montreal man who was accused of raping a partially paralyzed, 65-year-old woman who uses a wheelchair. In the 6-to-3 ruling, the high court said there were extraordinary circumstances in which a sexual assailant could be transformed, under the influence of alcohol, into an ``automaton.''
The court compared the conscienceless state explicitly to insanity. ``Significant'' intake of alcohol, the court said, might make it impossible to prove intent to commit a crime.
In another successful use of the drunkenness defense here, an Ontario court last month cited a defendant's intoxication in handing down a six-month sentence for criminal assault.
The relatively light sentence echoed a Baltimore County, Md., judge's pronouncements from the bench last month when he sentenced a man convicted of murdering his adulterous wife to just 18 months in jail. The judge expressed sympathy for the homicidal response of someone who came home to find his wife in bed with another man, and he cited alcohol as the man's biggest problem.
``Intoxicated people are no less culpable than sober people,'' said University of Ottawa criminal law professor Elizabeth Sheehy in an interview. ``It's highly inappropriate to say to these people, `You are not accountable.' You should be sending the message, `You are responsible.' Not to do so is really bad social policy.''
Beset by public anxiety about the impact of the ruling, Justice Minister Allan Rock said this week that he was considering the creation of a new offense of ``criminal intoxication,'' whose provisions would answer the concerns of many of the court ruling's critics.
Edward Greenspan, one of Canada's leading criminal lawyers, said in an interview that the outcry over the drunkenness defense was way out of proportion to its probable impact. The standard of proof, he said, requires ``a level of drunkenness only the near-dead can approach. There wouldn't be a case. There'd be a funeral.''
But Greenspan added that drunkenness has been used successfully to mitigate sentences in homicide and some burglary convictions.
``If [the defense] is advanced seriously, not as a last resort, juries are relatively sympathetic,'' he said. ``They realize you're not such a bad person, and the finger of moral condemnation cannot be pointed with the same degree of firmness'' as in a case in which alcohol is not involved.
The drunkenness defense appeared to have been less persuasive to a Canadian military judge Thursday. In a case involving the captain of a Canadian minesweeper accused of groping and kissing a female crew member under his command, the judge convicted, demoted and dismissed the officer ``with disgrace.''
The judge, Col. Guy Braise, said the defendant's history of alcoholic blackouts, and his alleged impairment after consuming five or six drinks of high-proof rum per hour for five hours before the assault, did not absolve him of responsibility:
``Though intoxicated, he functioned quite normally. The court cannot conclude he was acting like an automaton.''
by CNB