Rape, Intoxication and the Lack of Modern Legal Guidance

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The Sexual Offences Act 2003 (SOA) was introduced to modernise and clarify the law,[1] and it has had, debatedly, a limited impact as a tool to provide guidance on rape cases where a victim was intoxicated. Firstly, it shall be argued that s.74 and s.75 of the SOA provide finite statutory guidance in cases of voluntary intoxication , creating discrepancies in the law. Secondly, cases such as Bree and Dougal demonstrate with clarity where s.74 falls short on the definition of ‘consent’. Nevertheless, these cases do not go far enough in clarifying how much alcohol consumption is too much, and where the jury should seek guidance from, whilst objectively assessing complainants. Lastly, alcohol has been normalised in socio-sexual situations, ultimately making it less likely for juries to convict or condemn defendants.   

Paramount to the conviction of rape is the notion of consent, governed by s.74, in which a person consents if he agrees by choice and has the freedom and capacity to make a consensual decision.[2] Furthermore, s.75(2)(d) discusses the evidential presumptions of the lack of consent when the victim is unconscious.[3] Therefore, there is a clear stance for jurors to follow when a victim is involuntarily intoxicated, that there was no consent present. However, when it comes to voluntary intoxication the ‘Act is silent’[4] and the impact of this is ‘deafening’.[5] On the one hand, this creates inconsistencies in the law, as there is no distinct definition for ‘capacity’ and ‘agreement’, and therefore there is limited guidance for the jury.[6] On the other hand, Clough suggests that this creates a hierarchy between involuntary and voluntary intoxication, as there is ‘special protection’ for those who are involuntarily intoxicated, proposing the question ‘How does this mesh with the objective of the SOA 2003 to assist and encourage victims to come forward?’.[7] Thus, it is more problematic for defendants to be prosecuted due to the stigmatism surrounding voluntary intoxication, which fundamentally prevents victim’s from seeking prosecution due to the lack of statutory support.

In the controversial case of Dougal, the idea was established that in voluntary intoxication cases the language of s.74 meant ‘drunken consent is still consent’.[8] This view was refined in Bree, in which Dougal was held as the correct legal position and that when ‘someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting.’[9] Additionally, in H, it was held that the capacity to consent is a legal question, not factual, and that the question of consciousness should be removed, as the capacity to consent can cease prior to the victim becoming unconscious.[10] The courts argue this direction to be vital, as it provides a ‘clear definition of “consent” for the purposes of the law of rape’, whilst also ‘sufficiently’ addressing cases of voluntary intoxication.[11] Consequently, suggesting there should be limited problems in convicting defendants, as the common law is clear.

Nevertheless, it may not be that simple. Wallerstein argues that the legal threshold for consent can be seen as too high and ‘too restrictive’.[12] It requires proof of ‘a very high level of intoxication before capacity to consent is negated’.[13] Although the courts recognised that ‘different individuals have a greater or lesser capacity to cope with alcohol than others’, there has been no suggested guidance on how the jury should objectively view ‘capacity’.[14] Therefore, if this threshold is not met, there is a greater reliance on the defendant’s reasonable belief that consent was present.[15] This can be extremely problematic, as intoxication can eliminate ‘the reasonable element from any belief held because heavy alcohol consumption does not make us reasonable beings’.[16] Thus, as there is no ‘grid system’ for the ‘prescribed level of alcohol consumption’, the actions of the complainant are subjected to the juries’ predetermined views. [17]

Furthermore, feminists argue that law reform ‘will never solve the problem of rape’.[18] It could be suggested that the reason why convicting defendant’s is so problematic, is because of the overarching ‘traditional views of men and women in patriarchal society.’[19] Munro refers to a ‘double standard’, where in sexual consent scenarios, intoxicated defendants are seen to be held ‘less responsible for subsequent sexual events than their sober counterparts while intoxicated complainants tend to be held more responsible’.[20] Alcohol is the most commonly used drug in the Western world; a drug which is seen to be a ‘tool of seduction’ and ‘a measure of manhood’.[21] Thus, the use of alcohol in socio-sexual interactions has been ‘normalised’, making it more problematic to convict; the attention swaying from the defendant’s actions to the complainant’s behaviour leading up to the incident.[22] 

In conclusion, the conviction of defendants in cases of rape and intoxication can be seen to be extremely problematic due to limited statutory guidance, controversial common law and primarily, due to the inability to control juries’ preconceptions of alcohol in socio-sexual situations.  


[1] Bethany Simpson, ‘Why has the concept of consent proven so difficult to clarify?’, [2016], J Crim L 80(2), 97, 99. 

[2] Sexual Offences Act 2003, s 74.

[3] SOA 2003 (n 2) s 75.

[4] R v Bree [2008] Q B 131, 138.

[5] Amanda Clough, “Sober Regrets and share risk taking: navigating intoxicated consent and rape in the court room” [2018] J Crim L (82)6, 482, 484.

[6] Bethany Simpson (n 1), 109.

[7] Amanda Clough (n 5), 484.

[8] R v Bree (n 4) [32].

[9] Ibid. [33].

[10] R v H [2007] EWCA Crim 2056 [25].

[11] R v Bree (n 4) [36].

[12] Schlomit Wallerstein, ‘“A drunken consent is still consent” – or is it? A critical analysis of the law on a drunken consent to sex following Bree’ [2009] J Crim L 73(4) 318, 321.

[13] Ibid.

[14] R v Bree (n 4) [35].

[15] Amanda Clough (n 5), 487.

[16] Ibid.

[17] R v Bree (n 4) [35].

[18] Sharon Cowan, ‘The trouble with drink: Intoxication, (In)Capacity, and the evaporation of consent to sex’, [2008], ALR, Vol 41 No 4, 899, 901.

[19] Amanda Clough (n 5), 486.

[20] Emily Finch and Vanessa Munro, ‘The Demon Drink and the demonized Woman: social-sexual stereotypes and responsibility attribution in rape trials involving intoxication’ [2007] S & L S 16(4), 591.

[21] Ibid, 594.

[22] Ibid, 603.

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