In times gone by, the offence of rape was defined as ‘the carnal knowledge of a woman forcibly and against her will’.1 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
s 1 defines rape. Intercourse is complete upon proof of penetration by the penis and being complete means that it is has come into existence, not that it has reached an end. It is not necessary to prove that the hymen was broken. Part of the actus reus is that the victim does not consent.
1 St G Tucker, Blackstone’s Commentaries (William Young Birch and Abraham Small, IV, 1803) 210.
2DPP v Morgan  AC 182.
3J Temkin, Rape and the Legal Process (Sweet & Maxwell, 1987) 79.
4Crimes Act 1900 (ACT) s 54; Crimes Act 1900 (NSW) s 61I and s 61R(1); Criminal Law Consolidation Act 1935 (SA) s 48; Crimes Act 1958 (Vic) s 38.
5 See DPP v Morgan  AC 182, 215; Satnam and Kewal (1983) 78 Cr App R 149; Turrise v R  ACTCA 23; R v Brown (1975) 10 SASR 139; Wozniak and Pendry (1977) 16 SASR 67, 175.
s 2 This was a new offence that didn’t exist at all previous to the 2003 Act. The actus reus can be that accused uses a part of his body to penetrate victim as in rape, but orally is not included in this offence, and what he penetrates victim with can be his penis or it can be anything else, eg fingers, bottle, anything, and the victim must factually not consent. The crossover with rape will operate if the victim is unable to determine what she was penetrated with perhaps because she was intoxicated, injured or asleep. The mens rea is intention. As with rape, this offence requires a reasonable belief in consent and can be committed recklessly as a result of that. It is therefore a basic intent crime which means that evidence of no mens rea due to involuntary intoxication will be a defence – R v Majewski  AC 443. Sexual is defined at s 78 of the 2003 Act.
s 3 This offence is akin to the old offence of indecent assault under the 1956 Act, other than the s 3 offence here req uires that D touch V in the circumstances described. The old law only required an assault, which of course need not have involved actual touching. Under the common law in R v Rolfe  36 Cr App R4 D was guilty of an indecent assault when he walked toward V with his penis exposed. This would not satisfy the s 3 offence now. However, R v H  EWCA Crim 732 shows that only the slightest touch to V’s clothing in a sexual way will suffice. Sexual is defined ats 78 of the 2003 Act, and D’s belief in consent must be reasonable.
s 4 The actus reus is not complete unless V factually engages in a sexual act at the instigation of D and V factually does not consent. Sexual is defined at s 78 and D’s belief, if he is to escape liability, must be a reasonable one that V consents. There is no requirement for D to be present when V engages in the activity. Causing V to masturbate herself or causing V to engage in acts of prostitution are examples that would fit s 4.
s 61 Administering a substance can be done in any manner, eg in food or drink, by injection or by way of inhalation (perhaps on a smothering cloth or in vapour held under the nose whilst V is asleep). D must administer the substance or cause a third party to do so and while a sexual activity must be intended it need not be D who it is planned will engage in it with V. V must factually not consent and D must be aware of this – a mere belief that V might not consent is
s 74 provides that: ‘a person consents if she agrees by choice, and has the freedom and capacity to make that choice’. The definition is based on free agreement.
s 75 A conclusive presumption means that the presumption will apply, in this case that V did
not consent, if the relevant act is proven to have occurred (the sexual act) and the circumstances described are proven to have occurred (eg D deceived V as to the nature of the sexual act). D will then be presumed to have not had V’s consent and there is no opportunity for him to argue that he did have it.
The requirements of force and lack of will were replaced by the perception of consent in the mid 19th century. The turning point was the case of R v Camplin,6 where a woman was penetrated after being made drunk by the accused. Faced with no indication of force against the victim, the House of Lords decided that there could be rape if the penetration took place without the consent and against the will of the victim. In focusing on consent rather than force it has been argued that the offence does not capture the real nature of rape.7 Feminists have articulated several apprehensions about whether the focus on consent sufficiently protects women.8 Firstly, an objectionable consequence of making the consent of the victim the central question has been that criminal trials tend to focus on the conduct and sexual history of the victim rather than on the conduct of the accused.9 A second criticism is that ‘the everyday use of the term “consent” does not satisfactorily distinguish between cases in which the victim submits out of fear and cases in which she is prepared to engage in sexual intercourse’.10
6 R v Camplin (1845) 1 Cox 22. The decision was confirmed in R v Fletcher (1859) 8 Cox 131.
7 V Tadros, ‘Rape Without Consent’ (2006) 26 Oxford Journal of Legal Studies 515, 516. See also V Tadros, ‘No Consent: A Historical Critique of the Actus Reus of Rape’ (1999) 3 Edinburgh Law Review 317, 330.
8For further discussion see P Western, ‘Some Common Confusion About Consent in Rape Cases’ (2004) 2 Ohio State Journal of Criminal Law 333-359.
9 Tadros, above n 10, 326.
Finally, it has been argued that the theory of consent cannot be determined reasonably while jurors and judges rely on their predictable views about sexual roles in their assessment of consent such as, put bluntly, ‘yes’ means ‘no’; that women fantasize about being raped; or that women could resist if they really wanted to.11
Voluntary intoxication vs forced intoxication
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 existing situation where there is no statutory definition of consent to any sexual act which might otherwise be a crime is far from perfect, leading to a lack of lucidity for the complainant, the accused and the Jury. The positive impact of a lucid definition should also be felt outside the courtroom, preventing at least some acts of sexual violence. It would seem best that an alternative expanded and more inclusive definition of consent should have as its primary focus the conduct of the accused rather than that of the complainant, as far as possible, with the aim of
11 See Victorian Law Reform Commission, Sexual Offences: Interim Report (2003) 310.
avoiding protracted, hostile and thorough cross-examination of the complainant on matters which are often of doubtful bearing to any real issues in the case. Of course, fairness to the accused is a crucial principle. However, no less crucial is the framing of the law to circumvent needless suffering of survivors of sexual aggression by grilling, as there can be no doubt that apprehension of such an ordeal operates to augment the pace of erosion.
Is the present definition of consent inadequate
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 12. 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 13. 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€¦”.
However, the Court also made it clear that the complainant may still preserve the capacity to consent (or not) even if she has had quite a lot to drink, which means that basically each case will turn on its own facts. The UK Government decided not to change the law subsequent to this decision.
12 See Section 74 of the UK Sexual Offences Act 2003: “â€¦..a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.
13 For example, see an article by Victor Tadros entitled “Rape without Consent”, Oxford Journal of Legal Studies,Vol 26, No 3(2006), pp 515-543, at page 521 et seq
It would seem best, given that this is a situation which arises very frequently, and which gives rise to misuse, that an expansive definition of consent should contain stipulation for the situation where the complainant’s consent is compromised by her voluntary intoxication. After all, the drink driving laws believe that after use of a very modest measure of alcohol, our competence to control a car carefully is critically affected. Of course, this would mean that the conduct of the complainant would still be under investigation.
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” 14.
Circumstances when allowing sexual activity does not amount to consent
Allowing sexual activity does not amount to consent in some circumstances like when she does not protest and/or offer physical resistance to the activity or if the activity takes place while she is asleep or is unconscious.
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.
14 Section 75 (2) (d) UK SOA 2003
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.
The Sexual Offences Act 2003 and thereafter – Demand for change of Law
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 centres that provide specialised, dedicated help and support to victims.
The pioneer support for a change came from non-government groups and victim and survivor support groups, whilst members of the judiciary and legal profession were less persuaded of the need for change. Moreover, around a third of the respondents who believed that the law should be changed favored a further evidential presumption to cover intoxication by drink and drugs, often citing the recommendation that was made in the report to Home Office’s review of the law on sexual offences, “Setting the Boundaries”, which projected an evidential presumption that read: “Where a person asleep, unconscious or too affected by alcohol or drugs to give free agreement”. A number of respondents, particularly victim and survivor organizations, further argued that the law as it presently existed was essentially paradoxical on the subject of intoxication. The respondents argued that where intoxication fell short of unconsciousness and was therefore covered by section 75(d) of the Sexual Offences Act 2003, it was both presumed and not presumed to invalidate consent depending on whether the intoxicating substance was administered covertly or consumed voluntarily.
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. One example was where an uncle facilitated the intoxication of a younger niece in order to commit a sexual offence. Even in situations where the offender had not been responsible for inducing intoxication there was a risk that some men can seek to take advantage of the fact that women are drunk and therefore have less capacity to defend against demands or intimidation. Therefore, it was argued that the law should be changed so that it made no distinction between voluntary and involuntary intoxication if the final consequence was a lack of capacity to consent.
The proceedings in the case of R v Dougal 15 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.
15 R v Dougal (2005) Swansea Crown Court (unreported)
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.
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.
Should there be a statutory definition of capacity
This change in law by way of inclusion of a definition of capacity would bring a clarity to proceedings and ensure that juries would consider the complainant’s circumstances, including any effect that alcohol or other substances may have had on their ability and freedom to choose. Advocates of this definition consider that it is clear and easy to understand and would cover the circumstances where a complainant was so drunk – but not unconscious – as to not know what was happening or unable to say no.
A number of those who supported a further evidential presumption based on alcohol consumption suggested that this might be the statutory definition of capacity that was needed. Most commonly, the evidential presumption that was proposed was the one that appeared in “Setting the Boundaries”. Such an evidential presumption, it was argued would allow the case to be put to the jury, even where the complainant could not remember whether she consented or not. It would, of course, remain open to the defendant to say that the complainant did indeed consent and for the jury to believe him or, at least, give him the benefit of the doubt.
Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that ‘a drunken consent is still (valid) consent’, though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, 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 allows-and even requires-a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction 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 current case law and its interpretation of s. 74 for not being restrictive 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 criticised 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 criticised 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 restrictive position, 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 provision of better guidance to juries, but failing that a reform of the law might be needed.