At PCD Solicitors, we work with many clients accused of sexual assault following a ‘one night stand’ – for example, a complainant who says they were so drunk that they could not have consented to the sexual encounter and were therefore raped.
Our clients may find themselves returning home after a night out, only to be arrested a few days or weeks later for a serious sexual offence. They are told it relates to someone they met on a night out, but the client has nothing to hide, so they willingly attend the police station interview – some with legal representation and some without.
During the police interview, the client will say that both they and the complainant were drinking alcohol and the sexual intercourse was consensual. It now becomes a case of one word against another, and proving the defence of consent.
The question of whether a complainant was “too drunk” to consent has been controversial and created many different opinions over many years throughout the courts. It also presents the question: "Can you consent while drunk?"
This article explains the law regarding sexual consent and rape, and how intoxication through drinking alcohol can affect the investigation and prosecution of such cases.
What is Consent?
In 1982, the Court of Appeal attempted to define consent. The court said that it is a common word which, “covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other”. This rudimentary definition has since evolved to take into account many different circumstances which may arise in a case.
Historically, courts have viewed consent as a simple question of whether permission to have intercourse has been agreed between the parties or not.
However, this simplicity gradually eroded as various cases were seen throughout the courts which created difficulties. These cases created case law, setting precedents that can provide guidance to the courts on the interpretation of the law on consent and the Sexual Offences Act 2003.
The Sexual Offences Act 2003 is the primary legislation that sets out the law surrounding sexual offences and consent. Section 74 states that a person consents if they agree by choice, and have the freedom and capacity to make that choice.
However, although this legal definition aims to clarify what consent is, it does not make it easy to understand how and when consent should be communicated.
Consent can be given verbally or through physical conduct (‘body language’), which in itself makes things complicated. An accused person’s thoughts about what was happening and how consent was perceived are also very relevant considerations, as they may have had ‘reasonable belief’ that the complainant gave consent.
This makes it very difficult for a jury to reach a verdict in sexual assault cases. Many cases do not dispute that the sexual encounter took place, but rather whether the complainant had the capacity and freedom to consent to the sexual activity or not.
What is lack of consent?
There is no legal requirement to communicate a lack of consent, whether by the complainant verbally saying ‘no’ or ‘stop’, for example, or physically trying to stop the defendant by pushing them away. This is because the complainant may not have had the capacity to do so.
In such instances, the complainant can present evidence of lack of consent if, at the time of the alleged non-consensual sexual activity, they were:
- Too young to consent – the age of consent in England and Wales being 16 years old
- Emotionally manipulated or physically forced into submitting through exploitation or violence
- Asleep or otherwise unconscious and therefore unaware of what was happening
- Intoxicated due to the consumption of alcohol or drugs (including ‘spiked’ drinks)
- Suffering from a mental illness, personality disorder, or learning disability that limited their understanding of the situation or ability to communicate
It does not matter whether the accused person and their accuser knew each other or had previously engaged in consensual sexual activity together on previous occasions, or if the accuser consented to another type of sexual conduct with the accused.
What is rape?
Consent is what separates legal sexual activity from sexual assault (unwanted touching of a sexual nature) or rape (unwanted sexual activity involving penetration).
The Sexual Offences Act defines rape as a person (A) using their penis to intentionally penetrate the vagina, anus, or mouth of another person (B), if person B does not consent and person A does not have reasonable belief that person B consents.
If person A penetrated the vagina or anus, but not the mouth, of person B with any other part of their body – such as their fingers or tongue – or an object, this would legally be defined as sexual assault by penetration.
Rape has various elements, each of which must be proved to a convict the accused. There are two parts to the offence; the act of penetration, and the mental element which requires the accused to reasonably believe consent is being given.
It is the second requirement which, in most cases, raises real challenges for the courts in determining whether a complainant has actually consented in a given situation.
Intoxication through alcohol or drugs
Alcohol and other drugs can complicate these situations further, because these substances are known to impair judgement and both mental and physical capabilities.
Many cases have come before the court which have involved the complainant being intoxicated, whether it be by the consumption of alcohol or drugs. Voluntary intoxication cannot be used as a defence by either party.
The Court of Appeal has stated in past cases that, “drunk consent is still consent” – however, the same court acknowledged that, “as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious”.
Of course, it is possible for people to participate in consensual sex when both have been drinking alcohol, but if a person is intoxicated to the point of incapacitation, they cannot give valid consent.
There is an automatic presumption that an unconscious individual is automatically unable to consent to anything. The real difficulty, therefore, is determining the validity of the consent of a person in the middle of these two extremes, such as a person who is very drunk, but not to the point of unconsciousness.
The same applies to a complainant who was drugged in any way – for example, if the complainant has been seen drunk and their condition was deemed to have been caused by the behaviour of the accused, which applies in cases where drinks have been spiked.
As everyone has a different tolerance to alcohol, what one person perceives as being ‘too drunk’ may be completely different to another person’s perception. It is an incredibly difficult concept to standardise, which makes every case very unique.
Therefore, other than a person reaching the point of unconsciousness due to intoxication, there is no definitive legal answer to the question, “When is a person too drunk to consent?”
How would PCD Solicitors approach such a case?
If an individual was accused of rape and came to PCD Solicitors for specialist legal advice, we would first listen to their account as our client and then provide relevant guidance on the law surrounding rape and consent.
We would then consider the details of the prosecution case papers with our client, discuss their complete version of events that occurred on the occasion in question, and obtain their instructions on how they wish to proceed.
Next, we must obtain the necessary evidence to support our client; whether this involves text messages sent by the complainant, phone calls made the next day, or disclosures made to other people about their one-night stand.
By gathering as much information as possible, we can exhibit all relevant supporting evidence and present a strong defence.
The above steps would begin immediately – whether your case is at the police investigation stage when you contact us or you have been summoned to court, we continuously work at all stages to stop a prosecution in its tracks.
Any supporting evidence or statement will only be submitted where it is in the client's best legal interests to do so. It is our job to protect you and ensure that any evidence provided on your behalf could not lead to further incrimination.
It is important to remember that no two cases are the same, and the exact approach any solicitor takes will be dependent on the specific circumstances.
If you would like to find out more about the approach we could take in your case, please contact one of our lawyers today for a free initial consultation.
Call 0151 705 8488 or email info@pcdsolicitors.co.uk to discuss your case in confidence.