Sexual Offences Act 2003 - The Problem of Consent and Intoxication.

The problem with this judgement arises when the point at which the complainant lacks the capability or the ‘capacity’ to consent, has to be decided upon. Sir Igor Judge P himself commented on this by stating that ‘capacity to consent may evaporate well before a complainant becomes unconscious’, but then added that whether this occurs or not is something that the jury has to decide upon, and the judge has to offer them guidance in this respect. The term ‘capacity’ itself has not been defined by the judges R v Bree.

Although the judges in R v Bree stated that the judge should have assisted the jury by providing them with guidance and directions regarding the definition of capacity as it applied to the circumstances of the case, they themselves did not provide the judge with guidance on how to go about properly addressing this, and left the task of defining the law and explain the concept of ‘capacity’ to the discretion of the judge.

The court could have taken this opportunity to clarify that a complainant does not have the capacity to consent when her knowledge and understanding of the situation that she is in is so inadequate that she is not in a position to decide whether to agree. They could also have given a basic guide to the factors to be considered by judges in giving guidance to rape juries, as this would have given the judges some sort of a framework to work within, rather than leaving all guidelines and directions to be given to the jury at the discretion of the judge.

Another prominent case relating to capacity to consent is R v H. It is similar to the extent that the complainant was voluntarily intoxicated, became separated from her friends and had sexual intercourse with a stranger.

As the victim could not recall whether or not she had said a “yes”, the judge accepted H's submission that there was no case to answer.

The Court of Appeal overturned this withdrawal and stated that ‘[i]t was for the jury, not the judge, to decide, on the basis of the evidence called, whether, on these facts, in this case, the complainant had the capacity to consent and/or in fact consented to intercourse or not’.

We see here another case wherein a judge has not inquired into the complainant’s capacity to consent or not, and has not left this deliberation to the jury. This shows that trial judges may need some guidance and directives on how to address this issue in such cases, and also need guidance as to the directives that they should give to the jury so as to come to a decision.

NEED FOR GUIDANCE :-

Thus, the need for guidance is twofold, with a set of guiding directives from the Court of Appeal (or a higher court) for Trial Court judges, and a set of guidelines by the Trial Court judges for the jury.

   

As the above mentioned cases have illustrated, there is a lack of consistency in the decisions made by the Trial court judges, wherein most of them have made fundamental mistakes regarding the issue of consent in general and capacity to consent in particular. Temkin and Ashworth stated as far back as 2004 that, given the absence of a statutory definition of concepts such as ‘freedom’ and ‘choice’, ‘it will be for the Judicial Studies Board [a body that provides training and instruction for all judges] (and then the Court of Appeal) to develop a standard direction on consent which can be suitably tailored to the circumstances of each case’. However, the Judicial Studies Board has not (as of now) provided a standard direction relating to Section 74.

Keeping this in mind, it would clearly have been helpful had the Court of Appeal in R v Bree or R v H attempted to define more clearly the outer limits of consent in cases of intoxication. 

As the amount of alcohol required to make an individual lose the capacity to consent varies from case to case, a grid system would not have been possible to create, whereby a certain number of drinks are tolerable. 

However, what could have been done was to give certain factors to be considered by judges when guiding juries in such cases, such as explicit physical reluctance being unnecessary and the quality of communication between complainant and defendant.

As far as guidelines by the Trial judges to juries go, these are important for 2 reasons. Firstly, it is to prevent confusion and arbitrariness during the deliberation of the jury as to when exactly the complainant should be judged incapable to consent or not. Hence the judge should provide them with guidelines and factors that the jury should use as tools to come to a decision. This was noted by Rumney and Fenton, who stated that the judges in R v Bree failed to address the ‘core concern with the current statutory framework, that is, lack of guidance’. 

Another factor of particular relevance to cases of intoxicated consent is the influence of social attitudes and definitions of rape. Kramer details research that indicates the existence of a fundamental double standard in public attitudes to rape: intoxication tends to reduce men's culpability and increase women's culpability. 

In order to establish whether such societal attitudes actually end up influencing juror decision-making, several research studies have been conducted to study the effect of intoxication by the complainant on rape juries. Early research from the United States found that the ‘[rape] jurors were influenced by a victim's “character”. They were less likely to believe in a defendant's guilt when the victim had reportedly … drank or used drugs ....’

In a recent study conducted by Finch and Munro, the interpretation of mock jury members of the consent provision when making a decision on a rape trial in which the victim was intoxicated was examined (under the Act). During their pilot study, they found that for some of the participating members, ‘the very ingestion of alcohol by the complainant was enough for them to decide and ‘absolve the defendant of all responsibility to the victim.’

Over the course of their further study of mock jury members, they found participants that the participants differed very significantly amongst each other in their interpretation and implementation of the meaning of consent and capacity to consent as contained in Section 74 of the Act. Certain jurors even expressed that the ‘complainant had a responsibility to express her dissent’ and some even thought that as long as a woman was conscious, regardless of how drunk she may have been, she would still have the capacity to consent.

The problems created by the lack of a guidance offered in these cases was almost compounded by the fact that in R v H, Hallett LJ characterised the case as ‘yet another sad example of what can happen when young people roam the streets of our cities vulnerable through drink and/or drugs’. 

With a lack of guidance, the view expressed by the judge would almost serve to re-enforce the beliefs of jurors that the woman (if intoxicated) is herself responsible for whatever happened to her.

INVOLUNTARY INTOXICATION :-

While the former part of the paper dealt with voluntary intoxication of the complainant, we now examine the legal mechanism when the victim has been involuntarily intoxicated.

For example, in a case wherein the defendant administered a date-rape drug to the complainant without her knowing in order to disorient her, would the concept of determining the complainant’s capacity to consent still be applicable?

In such scenarios, the law expressly forbids individuals from intoxicate women without their consent in order to procure their engagement in sexual activity. Section 61 of the Act stipulates that it is an offence for a person to ‘administer a substance to another person knowing that B does not consent, and with the intention of stupefying or overpowering B, to enable any person to engage in sexual activity that involves B.’ This provision is provided for in Section 75 (2) (f) as an evidential (rebuttable) presumption as well (implying that this point can be rebutted against by the defendant).

As per the home office, Section 61/75 (2) (f) addresses ‘a very real concern about the use of drugs and alcohol to enable rape to take place’.

Thus, this section clarifies the fact that any apparent consent to sexual activity wherein the consent  that has been caused by the administering of a drug/alcohol with the intention of ‘stupefying’ and ‘overpowering’ B is not counted as consent and is rendered invalid, or as Andrew Simister and Robert Sullivan put it, ‘where D has administered or caused V to take a substance without her consent, it may be said her consent was not valid where she does things she would not have not have done but for the disinhibiting effects of the substance’.

However, unless further clarifications are issued, there are ambiguities under this provision as well. One problem area has to do with the fact that the relevant action that renders this provision evidential is indicated by the phrase ‘capable of causing or enabling’. Hence, some may interpret it as being a situation where if a substance has been administered to the complainant that is capable of overpowering her, than that is enough evidence to show that she was overpowered and consent was not given freely.

However, if we suppose that there are cases in which the complainant was not stupefied, even though a stupefying drug/liquid was given to her. It would be hard for the prosecution to prove that she was stupefied, and it would be even harder for the defence to show that she was not overpowered. This would lead to a scenario wherein if the defence cannot raise any credible evidence to show that the complainant was not stupefied, the provision would warrant the conviction of the defendant based on the evidence that the defendant had intercourse with her and she had been given a drug which might or might not have stupefied her.

A solution to this could be that although in most cases, the fact that the complainant was given a stupefying drug will be sufficient to show that she has been stupefied. But, in some cases, where it is not sufficient, the prosecution should be required to prove that she was stupefied.

CONCLUSION

As stated earlier, one the most important requirements of this Act is guidance, which is required for jurors who are confused about the meaning and concept of capacity under the Act. Although evidential presumptions are present to help clarify the issue of consent, they only indicate that there are instances where the circumstances are present but where the defence may be able to rebut these circumstances. But they do not tell us what consent is or when it is absent, or when a person has capacity and when she does not. Such guidance has to come from the higher courts. This would ensure that the members of the jury will not base their decisions on moral values and beliefs.

The guidance for jurors can only come from the Trial judges when they themselves are sure about the concept of consent and capacity, and this can be clarified by a directive from a higher court that provides guidelines and direction which the judge can understand and then provide to the jury with reasons for making their decision.

BIBLIOGRAPHY

Books

• Alan Wertheimer, ‘Consent to Sexual Relations’(Cambridge University Press, Cambridge 2003.
• In Harm's Way (Cambridge University Press,  Cambridge 1994)
• Peter Rook and Robert Ward, Rook & Ward on Sexual Offences Law & Practice (3rd edn Sweet and Maxwell, London 2003)
• Smith and Hogan, ‘Criminal Law : Cases and Materials’  (Oxford University Press 2009)
• A Simister and R Sullivan, ‘Criminal Law: Theory and Doctrine’, 3rd edn (Hart Publishing: Oxford, 2006)

Journals

• V Tadros ‘Rape Without Consent’ (2006) 26 Oxford Journal of Legal Studies 515
• E Finch and V Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26 Legal Studies 303
• Jesse Elvin, ‘The Concept of Consent under the Sexual Offences Act 2003’ (2008) 72 J.C.L 519.
• Karen M. Kramer, ‘Rule by Myth: The Social and Legal Dynamics Governing Alcohol-Related Acquaintance Rapes’ (1994) 47 Stan. L. Rev. 115
• Philip N S Rumney and Rachel Anne Fenton, ‘Intoxicated Consent in Rape: Bree and Juror Decision-Making’ (2008) 71 MLR 279.
• Sharon Cowan ‘The Trouble with Drink: Intoxication, (In)Capacity and the Evaporation of Consent to Sex’ (2008)  41 Akron L.Rev  899.
• J.Temkin and A.Ashworth ‘Rape, Sexual Assault and the Problems of Consent’ [2004] Crim.L.R. 328 -346.
• S Walterstein ‘’ (2009)
• Home Office, ‘Setting the Boundaries: Reforming the Law on Sex Offences’, Volume 1 (2000)

Cases

• R v Malone [1998] 2 Cr App R 447.
• R v H [2007] EWCA Crim 2056.
• R. v Ismail (Abokar Ahmed) [2005] EWCA Crim 397.
• R v Gareth John Gardner [2005] EWCA Crim 1399.
• R v Lang (1975) 62 Cr.App.R 50.
• R v Bree [2007] EWCA Crim 804.

Statutes:

• Sexual Offences Act, 2003.

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