In the second situation, a victim not expressing dissent is not taken to have consented, though the possibility that she did consent existed. Relating to a case of involuntary intoxication, it can be concluded that 'a defendant who administered the drugs that reduced the victim to a state of inert unresponsiveness was at least reckless as to the absence of consent hence would fall within the parameters of rape. '24 The current law rests upon 'the question of whether the victim consented to intercourse at the time, not whether she would have consented had she not been intoxicated'.
This position was reinforced by Scarman L. J. in R. v Lang that 'the critical question is not how she came to take a drink, but whether she understood her situation and was capable of making up her mind'26. This is still the position under the current law, which poses the greatest problems in imposing liability for rape. In the case of R. v Groves27, it was suggested that if a complainant had been administered a drug, in addition to an appropriate direction on its potential effect on consent, there has to be a focus on her state of mind.
The direction agreed upon was that a tablet had to be administered to the complainant with the intention of reducing or eliminating the capacity of the complainant to resist and/or remember a sexual assault and that the defendant either administered the tablet or knew that such a tablet was administered. Once they were sure of the above, they would have to take into account evidence in deciding whether the defendant knew that the complainant was not consenting or did not bother if she consented. However, there is a slight distinction between the victims who were administered date-rape drugs and those whose drinks were spiked28.
Evidence suggests that the misuse of alcohol in relation to sexual offences is more widespread, with 75 percent of men admitting that they had used alcohol to increase the likelihood of intercourse with an initially reluctant woman29. By choosing to drink alcohol, there is the possibility that she may reach the same level of intoxication even without her drink being spiked. Coupled with the social acceptability of alcohol intoxication, many people feel that the complainant should be held partially responsible if she was willingly drinking alcohol30.
For complainants that were intoxicated voluntarily, the issue of consent is often more controversial. It is difficult to determine exactly at which point self-induced intoxication vitiates consent. Voluntary intoxication impacts consent in two ways31. Firstly, the complainant and the defendant could argue over the fact or level of intoxication such that the defendant claims either that the complainant was not drunk at all, or that she was not drunk to the degree that she was incapable of consenting, and that she did consented.
There could also be a disagreement over whether or not there was consent such that the defendant claims that the complainant gave consent despite her drunken state and that she was capable of doing so despite being intoxicated. After all, as pointed out by Sir Igor Judge in R. v Bree32, 'a drunken consent is still consent'. It was also remarked in the case that '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'. This was demonstrated in R. v Dougal33.
Even though the complainant asserted that there was no way she would have agreed to have sex with the man, a complete stranger, she could not remember whether she had actually consented or not because of intoxication through alcohol consumption, hence the jury was instructed to find the defendant not guilty. Based on the cases of Bree, Dougal and R. v. Gardner34, it is suggested that if the complainant cannot remember refusing, or anything that had happened, as long as she was conscious, or that the man's belief in her consent will stand35. There is a huge influence of social attitudes on rape and intoxication.
In a survey on public's perceptions of rape victims, 30 percent of respondents believed that a woman who had been drinking and who was subsequently raped was at least partially responsible for the attack36. In an early research in the United States, it was found that rape jurors were often influenced by a victim's character and less likely to convict when the victim was known to intoxicate voluntarily. Jurors were likely to take into account the victim's characteristics and the extent to which her 'gender role behaviour' departed from that of what is expected of women37. Ward also notes that 'people are…
more likely to see intoxication as contributing to the woman's responsibility in sexual assault'38. The distinction between the law for voluntary intoxication and involuntary intoxication is due to public policy. Admitting voluntary intoxication as an evidential presumption listed in section 75 of the Sexual Offences Act 2003 would 'provide a retrospective sober veto upon consent given in drink'39. Those who take alcohol or drugs voluntarily are placed in a different moral category from those who have had intoxicants administered to them and the presumptions in section 75 are there to protect those 'innocent' victims40.
There is growing consensus which suggests that the Sexual Offences Act 2003 'fails to provide sufficient guidance to jurors on the meaning of key aspects of the actus reus of rape'41. It has been suggested that there should be a statutory definition of key terms such as 'capacity' to guide juries and more guidance on the issue of intoxication and consent. Cowan suggests that there should be a level of intoxication beyond which a complainant's capacity is in serious doubt and that the defendant's claim of consent should be called into question42.
This sentiment was echoed by Sir Igor Judge in R v Bree that there should be a statutory framework in rape cases to help courts decide whether too much alcohol had been consumed for consent to be valid. It is the role of court to decide when a woman's capacity has been diminished to the degree that consent is not possible. The problem with this is that different individuals have different levels of thresholds which cannot be reflected accurately in legislation. It is difficult to determine the exact stage at which a person is deemed not to be giving "true" consent as their sexual behaviour may only be due to their intoxicated state. In conclusion, the current law, although an improvement from the old law, still leaves areas to be clarified. (2510 words)
Books David Ormerod, Smith and Hogan Criminal Law: Cases and Materials (10th edition, Oxford University Press, New York 2009) Michael Allen, Textbook on Criminal Law (8th edition, Oxford University Press, New York 2005) CMV Clarkson, HM Keating and SR Cunningham, Clarkson and Keating Criminal Law: Text and Materials (6th edition, Sweet and Maxwell Limited, London 2007) C. A. Ward, Attitudes towards Rape: Feminist and Psychological Perspectives (Sage Publications, London, 1995)