Handled in criminal law

In England and Wales, for a person to be convicted for rape under section 1(1) of the Sexual Offences Act 20031, the prosecution is required to prove three things – intentional penetration, absence of consent and absence of reasonable belief in consent. The use of the 'reasonable person test' shifts the emphasis from the subjective belief in consent held by the defendant under the Sexual Offences Act 19562. The focus of rape is primarily on the consent of the victim, 'relegating force to a subsidiary role'3. In many cases of rape, the complainant was intoxicated, either voluntarily or involuntarily, at the time of the alleged offence.

Intoxication, as defined under the Public Order Act 1986, refers to any intoxication, whether caused by drinks, drugs or other means, or by a combination of means4. This essay attempts to critically evaluate the way rape cases involving intoxicated victims are handled in criminal law. The fundamental issue to the offence of rape is that of consent. For a person to be convicted of rape there has to be 'a lack of consent and not positive dissent'5 by the victim. Consent is defined under section 74 of the Sexual Offences Act 2033 as being given if a person 'agrees by choice, and has the freedom and capacity to make that choice.

'6 Section 75 of the Act consists of an exhaustive list of situations where' the complainant is to be taken not to have consented'7 and 'the defendant is to be taken not to have reasonably believed that the complainant consented'8 and the defence will be under an evidential burden to introduce sufficient evidence to raise the issue of consent or reasonably belief beyond reasonable doubt9 while section 76 lists two circumstances whereby it is conclusively presumed 'that the complainant did not consent to the relevant act, and that the defendant did not believe that the complainant consented to the relevant act.

'10 In general, intoxication affects our rational capacities and impairs our physical and verbal abilities, rendering consent obscure11. One problem with consent is that it is defined with everyday terms such as 'freedom', 'choice' and 'capacity'. This 'creates a malleable and unpredictable legal test'12 because the legislation does not define what the terms mean and everyone's understanding of the terms differs slightly.

As a mock juror remarked, 'people's interpretations can be different… on what is reasonable'13. For complainants that were not intoxicated voluntarily, section 75(2)(f) states that the complainant was not considered to have consented if 'any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which… was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

'14 However, it must be noted that this section does not stipulate that a person who has been given an intoxicant 'cannot give valid consent'15 due to the condition attached that the section only comes into play when there complainant is 'stupefied or overpowered'16, which has not been adequately defined. Stupefaction has not been defined in English law and under the ordinary definition from the Oxford English Dictionary, stupefy means 'to deprive of apprehension, feeling, or sensibility; to benumb, deaden'17, suggesting that the victim may need to be unconscious.

The word 'overpowering' means 'to defeat or overcome with superior power or force'18, suggesting that 'a substance will only be one which overpowers the victim if it is capable of rendering her physical resistance impossible'19. As these terms are undefined in English law, the usage of common definitions can be slightly troubling as many victims may not be rendered unconscious because different people react differently to the ingestion of intoxicants. Hence, further clarification of the terms is required.

There is also a need to 'establish a causal link between the administration of the intoxicant and the stupefaction or susceptibility of the victim to being overpowered'20. According to Vanessa Munro and Emily Finch, there are three possible outcomes when a complainant is drugged: first, the victim becomes unconscious and remains so throughout the intercourse; second, she is unable to resist or object whilst intercourse occurs due to the sedative-hypnotic effects of the drugs and third, she is induced by the drugs to be a willing participant in sexual activity that she would usually refuse21.

The first situation illustrated above is straightforward as the victim cannot possibly consent to intercourse and the defendant has no reason to believe she consented if the victim remains unconscious throughout the intercourse and this is evident in section 75(2)(d) which states that if 'the complainant was asleep or otherwise unconscious at the time of the relevant act'22, there was no consent. This was illustrated in the case of R. v Nathan Wright23 where the appellant was convicted for having 'sexual intercourse with [the victim] while she was unconscious and thus not consenting nor capable of consenting'.