In times gone by, the offence of rape was defined as 'the carnal knowledge of a woman forcibly and against her will'. The offence was initially silent on the issue of mens rea and it was not until DPP v Morgan2 that its inclusion and the effect that this had on mistakes about consent was established. The House of Lords held that a trust in consent, even if irrational, would go against mens rea provided that the trust was honest. Although subject to a measure of criticism, such as that it represented a 'rapist's charter',3 this is still the approach to the offence in the common law jurisdictions. Rape requires evidence of the physical essentials of penetration without consent and also the mental aspect that the offender not only intended to penetrate but knew the victim was not consenting or was careless as to whether the victim was consenting.4 carelessness is generally understood subjectively to mean that the offender was conscious that it was probable that the victim was not consenting but continued in any case.5
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There is a well-established link between the use of commonplace intoxicants like alcohol and sexual assault. Estimates vary between studies, but it is generally accepted that alcohol has been consumed by one or both parties in a high proportion of rape cases. Alcohol has thus been suggested to be both a precipitant of, and an excuse for, sexual aggression by men (Richardson and Campbell, 1982; (Richardson and Hammock, 1991). In addition, alcohol use has been studied as a risk factor for sexual victimization, since it lowers awareness of risky situations and impairs the ability to resist assault (Abbey, 1991; Berkowitz, 1992). Four of the simulations involved alcohol, with the key variable relating to the means of administration to the complainant: (1) unambiguous self-administration; (2) self-administration under pressure from the defendant; (3) surreptitious strengthening of an alcoholic drink by the defendant; and (4) surreptitious administration into a non-alcoholic drink by the defendant.
The post Sexual Offences Act 2003 scenario
Now it is time to endorse a new extended all-inclusive definition of consent which incorporates the benefits and avoids some pitfalls of the definition used in the UK Sexual Offences Act 2003 6. Some legal experts have identified, that the UK definition does not give any guidance as to whether the complainant must communicate consent by words or action 7. However, it is apparent from the successive cases that the most significant rational issue has been "capacity". The England and Wales legislation does not include any definition of capacity itself, and its list of situations where there is presumed to be no consent, at sections 75 and 76 of the SOA 2003, does not expressly include the situation where there is no capacity to consent because of self-induced intoxication of the complainant which falls short of unconsciousness. It is reasonable to say that the UK Government examined this breach in the law in the light of the decision of the Court of Appeal in R v Bree  EWCA 256, in which the Court interpreted the capacity to consent as something which "may evaporate well before a complainant becomes unconscious", and explained that "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 consentingâ€¦". The UK Government decided not to change the law subsequent to this decision.
Some regulation as to what should be included in such an extended definition will be found at Sections 75 of the UK SOA 2003 (evidential presumptions about consent) and Section 76 ibid. (conclusive presumptions about consent), which taken together provide a list of situations in which the lack of consent may be understood, and except for the two exceptional situations contained in Section 76, additionally provide that it is open to the accused to bring in ample evidence to show that there is an issue as to whether the complainant consented, in relation to the particular state of affairs. This list of situations does NOT cover the situation where the complainant's capacity to consent is impaired by self-induced intoxication, but he/she is not "asleep or otherwise unconscious" 8.
A comparable condition may come about when she is affected by drugs or alcohol to such an extent that she is in no situation to consent or refuse. It is not pertinent whether or not she took the drug or alcohol voluntarily or involuntarily. Another condition could be when the person is so affected by a mental or physical condition or impairment that she is in no position to consent or to refuse consent. Similarly, it is not consent to sexual activity if she allows it because she is mistaken about the person's identity or she is mistaken about the nature of the activity. A consent by another person on behalf of the complainant cannot be considered a legitimate consent or if another person in a position of power, trust or authority incites her to engage in that activity. A complainant cannot express her consent by a lack of concurrence to engage in that activity or having first consented, she expresses by words or conduct a lack of agreement to continue to engage in such activity.
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The Government has already made a number of changes to the law on rape and the way the police and Crown Prosecution Service work on these cases. These changes include strengthening the law on rape through the Sexual Offences Act 2003 and developing a network of sexual assault referral centers that provide specialized, dedicated help and support to victims.
It was suggested that the distinction between those intoxicated having had their drink 'spiked' (or been drugged in some other way) and those intoxicated apparently of their own wish was not as clear cut as the law allowed for. There were cases in which offenders knowingly facilitated the intoxication of susceptible victims in order to commit an offence. The proceedings in the case of R v Dougal9 were widely cited as an example of the difficulties caused in applying the current law to cases involving voluntary intoxication and as an argument in favour of adopting a change in the legislation. This case collapsed when the prosecuting counsel took the view that the prosecution were unable to prove that the complainant, because of her level of intoxication, had not given consent and informed the judge that he did not propose to proceed further. The judge agreed and directed the jury to enter a 'not guilty' verdict. It was argued, that the case should have been proceeded with and the issue of the victim's capacity to consent put to the jury. It was argued that a change in the law would allow a similar case to proceed in the future and would provide assistance to the jury in considering the issue of consent.
While the relationship between capacity and intoxication was the most prominent issue, responses from police and prosecution representatives and children's organizations identified other factors that should be taken into account when considering an individual's capacity to consent. These included mental health, domestic violence and the exploitation of victims made vulnerable by their circumstances, for example sex workers.
There were differing opinions on whether a change in the law would be necessary to allow the effects of such factors to be considered in relation to consent. Organizations with a specific interest in children supported a change to the law which would take account of the particular vulnerability of children and the circumstances in which they can be exploited in order to commit sex offences. It was noted that alcohol can often be used by offenders to make it easier to commit an offence.
However, it was also pointed out that alcohol is frequently consumed voluntarily by teenagers before engaging in consensual sex and that it was important that intoxication should not be the only factor taken into account when considering the capacity of those under 16 to consent as this could lead to inappropriate prosecutions. The opinion that the law did not need to be changed was most commonly held by members of the legal profession, the judiciary and law enforcement agencies. Some argued that the law had only been in force for a relatively brief period and that any meaningful assessment of the Act's provisions was therefore premature. Continual change, others argued, rather than bringing clarity, would only serve to cause further confusion. Opponents of change argued, it would be wrong to seek to change the legislation simply because of the outcome of the case of R v Dougal. They took the view that the Sexual Offences Act 2003 had "provided a welcome modification to the law on consent", which had improved the law because juries were now required to consider what steps the accused had taken to establish whether or not the complainant genuinely consented. Although there may now be a focus less on whether or not consent was given but rather on whether the complainant had the capacity to give consent, this did not challenge the adequacy of the law as it was currently framed. Those who did not consider that the law needed changing argued that it was already the case that a jury could ask themselves whether the complainant was in a fit state to give free and informed consent, especially if they had been drinking heavily. It was suggested by judicial respondents that R v Dougal had been an exceptional case and that in most similar cases juries have been properly directed that lack of capacity includes incapacity through excessive consumption of alcohol or drugs.
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There was concern for the broader implications of a change in the law. It was suggested that establishing a link between intoxication and a capacity to consent could result in, and according to some should entitle, a defendant to argue that he was too drunk to assess whether consent had been given. It was also argued that the effect of intoxication on a person's ability to make decisions could not be used as a defence to other offences, for example assault, and so should not be relevant to the capacity to consent in rape cases. However, it was also argued that these two situations were not analogous because victims were not on trial.
Section 74 of the Sexual Offences Act 2003 refers to 'freedom and capacity' and argued that there was a distinction between these two concepts. It was argued that capacity to consent was relevant to children and individuals with mental disorders impeding choice but not to adults who had become intoxicated. It was suggested that equating adults with children in this way was a step backwards.
Does a person who is willingly drunk remain able of giving valid permission to sex. The Court of Appeal in Bree held that 'a drunken consent is still (valid) consent', though it further recognizes that the capacity to consent may fade away well before a complainant becomes insensible. This decision is a move in the correct course, yet this article argues that it has not gone far enough, and that s. 74 of the Sexual Offences Act 2003 which governs these scenarios permits-and even requires-a more harsh elucidation: a drunken consent is not consent when the person is very drunk. Based on a dissimilarity between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the existing case law and its elucidation of s. 74 for not being restraining enough, by examining two possible theoretical rationales, mentioned in the judgments. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticized on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticized for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restraining situation, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the stipulation of better guidance to juries, but failing that a alteration of the law might be required.