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major_clangerI was asked to repost this, part of a longer post that was f-locked because it included discussion of a specific case. It's a review of the way in which English criminal law addresses the question of whether someone can consent to sex if very drunk but not actually insensible.
This issue is addressed, albeit incompletely, by Sections 74 and 75 of the Sexual Offences Act 2003. These introduced reforms aimed at dealing with some of the situations where it is hard to prove the absence of consent but it is on the face of it unlikely. It identifies several situations which, if shown to apply, lead to a presumption that there was not consent. In other words, if the prosecution can prove that these circumstances applied, then rather than the prosecution having to prove absence of consent and reasonable belief in consent, the burden shifts to the defence to prove that there was such. The circumstances are:
- Use of, or fear of use of, violence against the complainant or another person.
- The complainant being unlawfully detained.
- The complainant being asleep or otherwise unconscious at the time of the relevant act.
- Inability of the complainant to communicate consent because of physical disability.
- If any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
The italicised provisions are direct quotes, and are the relevant ones here.
If the complainant is so drunk as to be asleep, unconscious or insensible when sex takes place, then there is a presumption against consent. However, this requires the prosecution to show that this was the case, which in effect shifts the question from being "do we believe that the complainant didn't consent" to "do we believe that the complainant was in that condition".
If the complainant's drinks are spiked then the other provision applies. However, it requires that the substance (which could be alcohol) be administered 'without the complainant's consent'. What this means if the complainant becomes drunk just by drinking to excess, then unless she becomes insensible (and the first provision applies) she is deemed still to have capacity to consent.
This is a controversial area of law and it was quickly realised that s.75 is not unambiguous. It is clear that someone may be so drunk that she does not know what she is doing whilst not actually being insensible. If she appears to consent to sex, is she actually giving consent, and even if not is it reasonable for the alleged assailant to believe that she is consenting? This issue was examined by the Court of Appeal in R v Bree [2008] Q.B. 131. The issue of intoxication and consent is discussed at paras 21 to 36. In particular, to quote para 34:
In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.
The judges (two out of three of who were female) went on to say:
The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves. [...] The problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.
This issue is addressed, albeit incompletely, by Sections 74 and 75 of the Sexual Offences Act 2003. These introduced reforms aimed at dealing with some of the situations where it is hard to prove the absence of consent but it is on the face of it unlikely. It identifies several situations which, if shown to apply, lead to a presumption that there was not consent. In other words, if the prosecution can prove that these circumstances applied, then rather than the prosecution having to prove absence of consent and reasonable belief in consent, the burden shifts to the defence to prove that there was such. The circumstances are:
- Use of, or fear of use of, violence against the complainant or another person.
- The complainant being unlawfully detained.
- The complainant being asleep or otherwise unconscious at the time of the relevant act.
- Inability of the complainant to communicate consent because of physical disability.
- If any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
The italicised provisions are direct quotes, and are the relevant ones here.
If the complainant is so drunk as to be asleep, unconscious or insensible when sex takes place, then there is a presumption against consent. However, this requires the prosecution to show that this was the case, which in effect shifts the question from being "do we believe that the complainant didn't consent" to "do we believe that the complainant was in that condition".
If the complainant's drinks are spiked then the other provision applies. However, it requires that the substance (which could be alcohol) be administered 'without the complainant's consent'. What this means if the complainant becomes drunk just by drinking to excess, then unless she becomes insensible (and the first provision applies) she is deemed still to have capacity to consent.
This is a controversial area of law and it was quickly realised that s.75 is not unambiguous. It is clear that someone may be so drunk that she does not know what she is doing whilst not actually being insensible. If she appears to consent to sex, is she actually giving consent, and even if not is it reasonable for the alleged assailant to believe that she is consenting? This issue was examined by the Court of Appeal in R v Bree [2008] Q.B. 131. The issue of intoxication and consent is discussed at paras 21 to 36. In particular, to quote para 34:
In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.
The judges (two out of three of who were female) went on to say:
The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves. [...] The problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.
