Critically evaluate the way rape cases involving intoxicated victims are handled in criminal law.

Criminal Law Essay

In England and Wales, for a person to be convicted for rape under section 1(1) of the Sexual Offences Act 2003, 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 1956. The focus of rape is primarily on the consent of the victim, ‘relegating force to a subsidiary role’. 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 means. 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’ 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.’ Section 75 of the Act consists of an exhaustive list of situations where’ the complainant is to be taken not to have consented’ and ‘the defendant is to be taken not to have reasonably believed that the complainant consented’ and the defence will be under an evidential burden to introduce sufficient evidence to raise the issue of consent or reasonably belief beyond reasonable doubt 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.’ In general, intoxication affects our rational capacities and impairs our physical and verbal abilities, rendering consent obscure.

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’ 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’.

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.’ However, it must be noted that this section does not stipulate that a person who has been given an intoxicant ‘cannot give valid consent’ due to the condition attached that the section only comes into play when there complainant is ‘stupefied or overpowered’, 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’, suggesting that the victim may need to be unconscious. The word ‘overpowering’ means ‘to defeat or overcome with superior power or force’, suggesting that ‘a substance will only be one which overpowers the victim if it is capable of rendering her physical resistance impossible’. 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’.

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 refuse.

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 ...

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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’, there was no consent. This was illustrated in the case of R. v Nathan Wright where the appellant was convicted for having ‘sexual intercourse with [the victim] while she was unconscious and thus not consenting nor capable of consenting’.

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.’ 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’. 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 Groves, 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 spiked. 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 woman. 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 alcohol.

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 ways. 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 Bree, ‘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 Dougal. 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. Gardner, 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 stand.

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 attack. 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 women. Ward also notes that ‘people are...more likely to see intoxication as contributing to the woman’s responsibility in sexual assault’.

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’. 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’ victims.

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’. 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 question. 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)

References:

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)

Statutes

Sexual Offences Act 2003 c.42

Sexual Offences Act 1956 c.69

Public Order Act 1986 c.64

Journal Articles

Victor Tadros, ‘Rape without Consent’ [2006] O.J.L.S. 515

Andrew Ashworth and Jennifer Temkin, ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent’ [2004] Crim. L. R. 328

Sharon Cowan, ‘The Trouble with Drink: Intoxication, (In)capacity, and the Evaporation of Consent to Sex’ (2008) 41 Akron L. Rev. 899

Philip Rumney and Rachel Anne Fenton, ‘Intoxicated Consent in Rape: Bree and Juror Decision-Making’ (2008) 71 Modern Law Review 279

Emily Finch and Vanessa E Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26 Legal Studies 303

Emily Finch and Vanessa E Munro, ‘The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited’ [2004] Crim. L. R. 789

Emily Finch and Vanessa E. Munro, ‘Intoxicated Consent and the Boundaries of Drug Assisted Rape’ [2003] Crim. L. R. 773

Emily Finch and Vanessa E. Munro, ‘The Demon Drink and the Demonized Woman: Socio-Sexual Stereotypes and Responsibility Attribution in Rape Trials Involving Intoxicants’ [2007] 16 Social and Legal Studies 591

Jennifer Temkin and Andrew Ashworth, ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent’ [2004] Crim. L. R. 328

J Gardner and S Shute ‘The Wrongness of Rape’ in J Horder Oxford Essays in Jurisprudence 4th Series (OUP, 2000)

Alan Reed, ‘Case Comment: Rape and Drunken Consent’ [2007] 176 Crim. Law. 3

Andrew Ashworth, ‘Case Comment: Rape: Consent – Intoxication’ [2007] Crim. L. R. 900

Cases

R. v Nathan Wright [2007] EWCA Crim 3473

R. v Lang (1976) 62 Cr. App. R. 50

R. v Groves [2004] EWCA Crim 1545

R. v Bree [2008] Q.B. 131

R. v Dougal (unreported)

R. v Gardner [2005] EWCA Crim 1399

R. v H [2007] EWCA Crim 2056

R. v Heard [2008] Q.B. 43

AG Ref No. 104 of 2004 [2004] EWCA Crim 2672

R. v Peter Philip Holness [2004] EWCA Crim 3066

Others

The Oxford English Dictionary (2nd edition, Oxford University Press, New York 1989) < > accessed 26 April 2010

Sexual Offences Act 2003 c.42 s.1

Sexual Offences Act 1956 c.69 s.1

Victor Tadros, ‘Rape without Consent’ [2006] O.J.L.S. 515, at 515

Public Order Act 1986 c.64 s.6(6)

CMV Clarkson, HM Keating and SR Cunningham, Clarkson and Keating Criminal Law: Text and Materials (Sweet & Maxwell Limited, London, 2007) 634

Sexual Offences Act 2003 c.42 s.74

Sexual Offences Act 2003 c.42 s.75

Ibid.

Andrew Ashworth and Jennifer Temkin, ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent’ [2004] Crim. L.R. 328, at 338-340.

Sexual Offences Act 2003 c.42 s.76

Sharon Cowan, ‘The Trouble with Drink: Intoxication, (In)capacity, and the Evaporation of Consent to Sex’ (2008) 41 Akron L. Rev. 899, at 903.

Philip Rumney and Rachel Anne Fenton, ‘Intoxicated Consent in Rape: Bree and Juror Decision-Making’ (2008) 71 Modern Law Review 279, at 285.

Emily Finch and Vanessa E Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26 Legal Studies 303,at 317.

Sexual Offences Act 2003 c.42 s.75(2)(f)

Emily Finch and Vanessa E Munro, ‘The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited’ [2004] Crim. L. R. 789, at 794.

Sexual Offences Act 2003 c. 42 s.75(2)(f)

“stupefy” The Oxford English Dictionary (2nd edition). Oxford University Press, 1989. <> accessed 26 April 2010

“overpower” The Oxford English Dictionary (2nd edition). Oxford University Press, 1989. <> accessed 26 April 2010

Emily Finch and Vanessa E. Munro ‘The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited’ [2005] Crim. L. R. 789, at 799-901.

Ibid.

Emily Finch and Vanessa E. Munro, ‘Intoxicated Consent and the Boundaries of Drug Assisted Rape’ [2003] Crim. L. R. 773, at 776.

Sexual Offences Act 2003 c.42 s.75(2)(d)

[2007] EWCA Crim 3473

Emily Finch and Vanessa E. Munro, ‘Intoxicated Consent and the Boundaries of Drug Assisted Rape’ [2003] Crim. L. R. 773, at 777.

Ibid.

(1976) 62 Cr. App. R. 50

[2004] EWCA Crim 1545

Emily Finch and Vanessa E. Munro, ‘Intoxicated Consent and the Boundaries of Drug Assisted Rape’ [2003] Crim. L. R. 773, at 781.

Ibid., at 780.

Sharon Cowan ‘The Trouble with Drink: Intoxication, (In)capacity, and the Evaporation of Consent to Sex’ (2008) Akron L. Rev. 899, at 900.

[2008] Q.B. 131

Unreported case as the trial was discontinued

[2005] EWCA Crim 1399

Sharon Cowan, ‘The Trouble with Drink: Intoxication, (In)capacity and the Evaporation of Consent to Sex’ (2008) Akron L. Rev. 899, at 914. Survey conducted by Amnesty International, 2005.

Ibid., at 906.

Philip Rumney and Rachel Anne Fenton, ‘Intoxicated Consent in Rape: Bree and Juror Decision-Making’ (2008) 71 Modern Law Review 279, at 285-286.

C. A. Ward, Attitudes towards Rape: Feminist and Psychological Perspectives (Sage Publications, London, 1995) 76.

Philip Rumney and Rachel Anne Fenton, ‘Intoxicated Consent in Rape: Bree and Juror Decision-Making’ (2008) 71 Modern Law Review 279, at 289.

Jennifer Temkin and Andrew Ashworth, ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent’ [2004] Crim. L. R. 328, at 339.

Philip Rumney and Rachel Anne Fenton, ‘Intoxicated Consent in Rape: Bree and Juror Decision-Making’ (2008) 71 Modern Law Review 279, at 280.

Sharon Cowan, ‘The Trouble with Drink: Intoxication, (In)capacity and the Evaporation of Consent to Sex’ (2008) Akron L. Rev. 899, at 901.