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Drunken consent in rape cases: Why the law leaves a lot to be desired

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Legislation and case law raises questions

The Sexual Offences Act 2003 reformed the crimes of rape and sexual assault following recognition that existing laws needed to change. As part of that, the act introduced a statutory definition of consent (the previous law did not define consent; it only provided a vague explanation on how it could be given).

But the legislation has been extensively criticised with many cases demonstrating the complexity of the debate on what consent truly is and how it should be defined.

Historically, courts had viewed consent as a simple binary concept of whether or not permission to have intercourse had been granted. But this simplicity has been gradually eroded as illustrated in the 1982 case of R v Olugboja, where the Court of Appeal attempted to define consent. The court said that it is a common word but which “covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other”.

As with many criminal offences, rape is assessed in terms of whether it meets the criteria of actus reus (physical element of a crime) and mens rea (mental element of a crime). The requirements for the fulfilment of the actus reus of rape were drastically changed in the Sexual Offences Act 2003.

The statutory definition now is:

A person (A) commits an offence if:
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

We can see that the first factor of the actus reus requires fulfilment. The other element of the actus reus is the lack of consent from the victim, which may refer to a situation such as where the victim is in a state of intoxication, in which the victim does not have the ability to give meaningful consent. In the event that both of these factors are achieved, then the actus reus is deemed to be satisfied and the defendant is therefore liable.

The current mens rea requirements for the crime of rape were introduced in 2003. The first element required is the criminal intention to penetrate (meaning that rape does not necessarily require sexual intercourse). The second requirement is the lack of reasonable belief in consent. A statutory definition now exists for this consent, which is: “a person consents if he agrees by choice and has the freedom and capacity to make that choice”.

But the current mens rea requirements raise real challenges in determining whether a victim has actually consented in a given situation (and consent can be given verbally or through conduct, which in itself makes things complicated). A defendant’s thoughts about what was happening and how consent was perceived are also relevant. For instance, friendliness can be perceived as indicating acceptance of sexual relations, when in reality this is not necessarily the case. Due to the highly subjective nature of the meaning of consent, reaching a verdict in sexual offences cases can be very difficult.

The case of R v Hysa demonstrates this. The complainant was drunk and high on cannabis and did not remember consenting to sex with the defendant. Nevertheless, she remembered not wanting sexual intercourse that night. The judge ruled that there was no case to answer as the evidence to whether she consented was unclear. However, the Court of Appeal later quashed the first instance ruling and the case was remitted back to the jury.

Interestingly, voluntary intoxication cannot be used as a defence by either party, as illustrated in the recent case of R v Bree. Here, the Court of Appeal stated “drunken consent is still consent”. However, they acknowledged that “as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious”.

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Indeed, section 75(d) of the Sexual Offences Act 2003 states that consent (if given) is not valid if “the complainant was asleep or otherwise unconscious at the time of the relevant act”. This was illustrated in the case of F v West Berkshire Health Authority, where the person was both physically and mentally incapable of consenting due to her unconscious state. Section 75(d) creates an evidential presumption that an unconscious individual is automatically unable to consent to anything.

This raises the interesting question of what is the correct way of dealing with the issue of validity of consent with a person in the middle of these two extremes such as an individual who is very drunk but not to the point of unconsciousness? Does the law view the consent to be valid? Or will it mould the definition to each scenario they receive and see if true consent was given?

Similarly, consent is not valid if the victim has been drugged in any way, as the condition of the complainant is deemed to have been caused by the behaviour of the defendant. A study found that many jurors perceive that no consent has been given by a defendant if there had been any form of involuntary intoxication, such as when their drink has been spiked. As obvious as this may seem, it still needs to be discussed. If the victim wanted to be aware of their surroundings and chose not to drink, and they were drugged, any consent given then is invalid. This is because the intoxication was not the result of the victim’s actions.

Drunken consent may, potentially, be valid from a legal perspective even though we have seen that consent cannot be given if the victim has been involuntarily drugged or intoxicated. But is very complicated for the courts to ascertain whether consent has been truly given by a drunken victim especially if the defendant perceives rejection as a flirtation technique. The legislation endeavours to develop a definition of consent which can meet the needs of this complex and emotive area, but the concept remains highly subjective.

It is still important to discuss issues like rape and consent. No means no, and if the person is intoxicated to the extent of where they are unaware of what they are consenting to, do not take advantage of the untrue ‘yes’.

Fulwah Ali Alhamed is a second-year law student at the University of Surrey. She’s interested in criminal law.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

46 Comments

Ciaran Goggins

Contributory negligence and implied consent (R v Evans) also the famous dictum “Much of what is termed rape is buyers remorse”. With the naming of Harvey Proctor’s false accuser in Ireland we must see anonymity for both sides or neither.

Judge hobosexual

So how can anyone have sex with a member of LC staff? They’re constantly blind drunk

Anonymous

An interesting element, which is not addressed in the article, is often overlooked – the burden of proof. The jury must conclude that it is beyond all reasonable doubt that the defendant did not reasonably believe that B consents. This is a significantly harder question to answer given the complexity of consent in the first place.

Anonymous

The lack of clarity in the law on the middle ground of ‘tipsy’ to ‘unconscious’ is a question of fact and lies at the heart of the presumption of innocence. It should be particularly difficult to suggest that because X had a drink, or three, that Y has raped them because X did not have the ability or inclination to consent. It is a high standard of proof to convict in criminal cases, the law cannot have laboratory/clinically clean cases before it, and so it must account for human fragility and falability.
The presumption of innocence, equality of arms and the standard of proof all go some way to addressing these concerns because we can’t be convicting people ‘easily’.
The law cannot say ‘3 drinks vitiates consent’ because what are 3 drinks? What may bladder one person may be a Tuesday lunch to another. The point of criminal law is that isn’t always clear cut or black and white, because many things become a question of fact, and are dependent upon human beings doing human things

Ciaran Goggins

Remember Tony Blair’s attempt to pass legislation on being “seriously drunk”? Poorly thought out knee jerk laws serve nobody.

Anonymous

(Same anon)
I do, however, appreciate this is a more practical consideration of wider law and the author of this article is making a comment on the ‘textbook’ law.
On its own merits, considering the stage the author is at, I appreciate the article and it’s nice to see articles from my old university
Note for the author: if considering writing more articles, consider expanding on this one to include the practical application of law as well

loljkm8

There are many issues involved, including lay understanding of the legal terms of ‘freedom’ and ‘capacity’. Studies have shown that each juror understands the terms ‘freedom’ and ‘capacity’ in a different way. As such, these terms create a malleable and unpredictable legal test due to the legislation not clearly defining what each word means in a legal sense.

Anonymous

“lay understanding” – pun intended?

US Trainee, Top Firm

At our offices, we bill it under ‘Learning & Business Development’.

Anonymous

I would have asked if you worked for Jones Day, but your name says “Top Firm”

Starved NQ

WHEN WILL DWF RAISE SALARIES?

£59k IS NOT ENOUGH!

Anonymous

36k and 38k in regions.

Anonymous

Great article and even better to see students taking the time to write articles.

I don’t mean to nitpick but wanted to urge caution on jumping the gun on liability:

“In the event that both of these factors are achieved, then the actus reus is deemed to be satisfied and the defendant is therefore liable.”

The defendant is not liable until both the actus reus and mens rea are satisfied.

Anonymous

The most pressing issue that needs to be addressed are the fact that social media trials by mob keeps happening in this #MeToo era, especially because the accused are often named while the alleged victims get anonymity the entire way through. If the accused is proven guilty then naming them is by all means fair but what’s not fair is that even if one is proven innocent, they still have that stigma following them for the rest of their lives. For innocent until proven guilty to be upheld, the accused should also get anonymity until the point they are proven guilty and alleged victims who are proven to have made false claims should not.

Anonymous

Watch the Danish film “The Hunt”. It highlights this fact in the most terrifying way imaginable.

Trumpenkrieg

Not Amused will be along shortly with all the answers.

Corbyn. Sympathiser

Bugger off, fascist.

Anonymous

Grow up.

Corbyn. Sympathiser

I still have the right to free speech, fascist oppressor.

Anonymous

Speech not abuse.

Corbyn. Symphathiser

I’m very disappointed to see another cosplayer of mine lower the tone of this article with such posts.

Corbyn. Sympathiser

Me too. Good point.

Corby. Sympathiser

I agree too.

Corbyn. Sympathiser

Ditto.

Corbyn.Sympathiser

And me.

Corbyn. Sympathiser

Couldn’t agree more.

Anonymous

Your hate boner for Trumpenkrieg is truly fascinating

Trumpenkrieg

Corbyn.Sympathiser loves riding on my boner.

Corbyn. Sympathiser

I wouldn’t even if I could find the microscopic appendage in question.

Corbinned.Skipdiver

Found it hiding behind a pube!

Trumpenkrieg

That belongs to Corbyn.Sympathiser

Corbyn. Sympathiser

Firstly inviting me to engage in carnal acts with you, now trying to identify my manhood. I have one message for you: I don’t fancy Nazis. Thanks.

Trumpenkrieg

Bigot.

Anonymous

“The first element required is the criminal intention to penetrate (meaning that rape does not necessarily require sexual intercourse).”

I’m not sure the conclusion in parentheses is correct. There does need to be penetration for rape. The “intention” element is addressing the possible (albeit unlikely) scenario of accidental penetration, e.g. in the paradigm ‘naked cuddle’ scenario, which would not amount to rape.

If there is no intercourse, there can of course still be attempted rape (e.g. where there is intended but not achieved penetration, which the author seems to envisage) but for rape to be established there has to be actual penetration.

Anonymous

If I recall my university criminal law lectures correctly, there was a Court of Appeal case turning on a male’s ‘unintentional penetration’ being a result of having accidentally ‘fallen in’

feasel

Unintentional penetration covers a situation which is not especially rare or unlikely. As this is a family blog, I’ll stick to dry legal terms so as to avoid inflaming delicate sensitivities. It covers the scenario when it accidentally goes up the bum instead of the hoo-ha.

Ex Barrister

Interesting article, but you don’t really address the reverse burden of proof which was pretty controversial when the SOA was passed.

Julia Babiarz

Fantastic Article!

Anonymous

The difficulty is that in ‘drunken one night stand’ type cases where intercourse occurs but there has been sexual relations involving both parties prior to the act, the Complainant will be deemed to lack the capacity to consent due to intoxication but the Defendant’s intoxicated state will be an aggravating feature against him. This is in circumstances when technically the Defendant could also raise an allegation of sexual assault against the Complainant in that he lacked the capacity to consent to the foreplay that occurred prior.

Very interesting article and very gray area open to a lot of reform.

Corbyn.Sympathiser

This post has been removed because it breached Legal Cheek’s comments policy.

Corbyn.Sympathiser

And I should know.

Anonymous

I wrote my dissertation around the issues of drunken consent in rape cases. Interesting stuff indeed.

Judge hobosexual

Getting blind drunk every night and getting a different stranger to poke your holes isn’t really writing a dissertation

k

I swear that my notes on this had twice the amount of material.

The author’s missing a lot of good stuff.

Anonymous

Er, F v West Berks was not about an unconscious person but an adult with learning disabilities and whether to sterilise her.

James_Dog

Super interesting article. One question
if as you said:A person (A) commits an offence if:
(a) he intentionally penetrates the vagina, anus or mouth of another person
(B) with his penis
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

If person A genuinely believes that anyone who is conscious can consent (no matter how drunk).
The court has to prove beyond a reasonable doubt that he does not hold this belief, to be found guilty?

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