Abstract
Sexual offences in England and Wales have had a dramatic reimagining in the last 15 years, with the Sexual Offences Act 2003 establishing not only the boundaries of the most heinous of offences such as rape, but also defining one of the most important elements; consent. This article seeks to explore the problems that surround establishing if legally valid consent has been given, with particular regard for cases where voluntary intoxication takes centre stage. The problem that often arises is the question on whether or not an intoxicated victim had the capacity to consent, or establishing if she did consent when memory of the event is hazy, possibly from both parties. Using comparative analysis with other jurisdictions and their take on the offence of rape, the author seeks to discover if the current rules are sufficient to fit within twenty-first century western culture. The victim will be referred to as ‘she’, although the law here and all situations discussed are equally applicable to male rape.
Highlights
The government have expressed concern as to whether protection is sufficient for individuals who are vulnerable and may generally lack capacity to consent to sexual relations.[1]
This article seeks to explore the problems that surround establishing if legally valid consent has been given, with particular regard for cases where voluntary intoxication takes centre stage
The Sexual Offences Act 2003 itself refers only to involuntary intoxication, where it will be presumed that there was no consent if the defendant supplied the victim such substances without her consent or knowledge[33] Interestingly, this provision covers substances administered, but ‘caused to be taken’. Is this intended to include a broader range of situations, where stronger drinks are bought or social pressures cause increased consumption?34 If the victim has consented to consuming alcohol, but is aided or even deceived in consuming more than intended, whether or not this is included in the rebuttable presumption of ‘caused to be taken’ is open to interpretation.[35]
Summary
The government have expressed concern as to whether protection is sufficient for individuals who are vulnerable and may generally lack capacity to consent to sexual relations.[1]. It has been suggested that much benefit would be gained from judicial guidance on the types of situation in which consent cannot be established,[4] though judicial training is currently requested of judges every three years to remain eligible to deal with such cases.[5] The Judicial College’s Serious Sexual Offences Seminar Programme covers legal, evidential and social issues, as well as sentencing and updating of knowledge.[6] This includes the impact of stereotyping on decision-making, a vitally important part of the process for cases involving intoxication, where the victim is often blamed for her own demise It covers judicial directions on the meaning of capacity and consent, another fundamental component to intoxicated rape cases. In Malone,[11] the court of appeal spoke of being physical unable to resist, but capacity to consent presumably asks of an assessment of the mind
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