Friday, September 09, 2016

Ben Johnson former Windsor Spitfire New Jersey Devils prospect case

I noticed a couple stories go by about a pro hockey player Ben Johnson link  link being convicted of sexual assault.


The first thing I thought was, what's a 16 year old doing in a bar? I've mentioned before the drinking age is 19 for a reason. Bars are not safe places. Hard people, criminals, and smooth operators frequent them. She should not have been underage drunk in a bar, especially when she was on medication to begin with. Her sister and the others with her should have kept a better eye on her, especially around the more worldly and sophisticated big time OHA players.

Ben Johnson was convicted of a crime so he is responsible for what he did. Still these are crimes of opportunity and it's important to avoid being vulnerable and in situations where bad people can do bad things.


I was a bit surprised at the line the defence took in this case. They seem to agree that Ben Johnson and the victim were in the bathroom together and some kind of encounter occurred. But to say that it was unsuccessful oral, while offering no credible explanation for the physical evidence seems a hard case to prove.

I'd have thought if the defence was going to agree that an encounter had occurred in the bathroom, they should have just said yes we had sex in the bathroom. Then with the act out of the way, focus on whether there was consent to what they agree happened in that bathroom or not. If there wasn't consent that would mean that Ben Johnson basically followed her to the ladies bathroom without her knowing and pounced. That would have been a tougher burden and a less believable story for the prosecution to sell.

After all, name OHA hockey players are propositioned all the time in bars. Johnson would not have had to just randomly sneak up on an unsuspecting young lady when someone like Johnson would have had opportunity to "pick up" normally in a bar. So it would give credibility to a defence line that she either suggested or at least agreed to the encounter.

With the line the defence took they seemed to put the burden of proof on themselves to prove their story that came across as less believable. It also implicitly validated the prosecutions line that if there was sex in the bathroom then it was criminal. Anyway the defence knows more about the case and the facts then I do so they took the line they did. It was unsuccessful and Ben Johnson was convicted. I think Ben Johnson's chances on appeal aren't bad. The Lyle Howe conviction was overturned.


The line the Ben Johnson defense took did make me wonder a bit though, if there already is or is very close to some kind of precedent and case law about consent. Specifically this

Is it possible to consent and be too drunk to consent?

You're tipsy in a bar talking to a lady you met that evening who has also been drinking. Out of nowhere she or maybe it was you suggests you sneak into a nearby broom closet for an encounter. Both drunk, you two foolishly agree to this crazy idea and it happens. The next afternoon you have a hangover and a bit fuzzy memory but you're pretty sure it did happen. Could you be arrested by the police if the lady claims she was so extremely drunk and does not remember consenting and in fact was too drunk to consent (even if she actually did in her drunkenness, but does not remember doing)?

If so, that would seem to create a secondary requirement around consent. First is to get consent. Then to somehow verify that the consent is "valid", that the person is not excessively drunk or medicated or whatever. Looking at the Ben Johnson case I'm not sure what that could mean. Carry a pocket breathalyzer and somehow measure if a lady is actually "too drunk" to consent? Johnson was not a doctor and could hardly have known about factors such as the medicines she was taking before hitting the bar. Also in a bar a man typically would be drinking himself so is hardly qualified to determine if someone else who has given consent is actually too drunk, medicated, etc. to be capable to give valid consent.

If I get a chance I should ask a lawyer who knows about that "too drunk" consent where a person has become voluntarily drunk/high/medicated by their own actions and if there is a thing such as "invalid" consent. This is outside of say a drink being spiked unknown to the victim, that is of course invalid consent and a crime. For guys in bars, a wise rule for our times is to avoid being excessively drunk. Avoid encounters out of bars with ladies you just met who you do not know.


I know in other situations "I was too drunk. I don't remember" doesn't hold. You're still responsible. For example if you drive drunk and wrap your car around a tree you will still be convicted of drunk driving. A judge will not accept that you were too intoxicated to "agree" to drive the car, and you have no memory of driving it or the accident. Whether you remember it happening or not you are still responsible for your decisions and actions while drunk though you may regret what happened.

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