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

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The complete modernisation and reform of the law on sexual offences led to the creation of the Sexual Offences Act 2003 (hereafter ‘the Act’). With the extent of legal reform being represented by the Act being as vast as it was, there was always going to be scope for there to be case law of significant controversy.

Consent, in particular, has been defined under Section 74 of the Act, which states that ‘a person consents if he [or she] agrees by choice, and has the freedom and capacity to make that choice’. The purpose of this particular Section was to clarify the meaning of consent rather than to change its meaning. 

To this effect, the Act introduced certain rebuttable and irrebutable presumptions regarding consent and belief in consent in Sections 75 (Evidential presumptions) and 76 (Conclusive presumptions) respectively.

The law with regard to drunken consent is set in Section 74 and 75 of the Act. Evidential presumption of the absence of consent when the victim is unconscious (as a result of excessive consumption of alcohol in this case) is stated in Section75 (2) (d). It can also be accepted that a person who has had minor quantities of alcohol, such as a glass or two of wine, or a peg of whisky is capable of consenting to sex. The controversy arises as to whether a person who is between these two extremes, i.e. when the person is extremely drunk but has not lost consciousness, is capable of giving a valid consent.

The researcher shall first consider the issue of voluntary intoxication under this Act and then the issue of involuntary intoxication.



The leading case on capacity to consent is R v Bree. In the case, the complainant had consumed a large amount of alcohol with the appellant before having sexual intercourse; the appellant had been convicted of rape and had appealed his decision.

The Court of Appeal based its judgement on the premise that the ‘law in the area’ would be governed under Section 74 and furthermore that, ‘for the purposes of the Act “capacity” is integral to the concept of “choice”, and therefore to “consent”’. The evidential and conclusive presumptions contained in sections 75 and 76 were briefly mentioned and dismissed, as neither deal specifically with ‘the impact of excessive but voluntary alcohol consumption on the ability to give consent to intercourse, or indeed to consent generally’. 

The court then highlighted the principle that was adopted in R v Lang, which it deemed to be most important for the case, ‘ … the critical question is … whether she understood her situation and was capable of making up her mind.’

Sir Igor Judge P then illustrated the difference between a complainant who is so drunk so as not have the capacity to be able to make the choice on consent and a one who, although very drunk, still retained the capacity to make the decision on consent, and does so.  “If, through drink ... the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting … However, where the complainant remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.”

The appeal was allowed as the Court of Appeal held that the judge had provided the jury with no guidance and assistance on how to go about addressing the issue of consent and in particular whether the complainant had the capacity, owing to her voluntary intoxication, to consent, and also whether that should be taken into account while deciding on whether she had consented or not.

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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 ...

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