The muddy waters of consent: intoxication

Last week, a jury in Winchester Crown Court found 26 year-old Peter Bacon not guilty of rape.

The ‘victim’, a solicitor in her forties, had claimed she had been raped because she was too drunk to have been able to consent to having sexual intercourse. The following morning, she asked if they’d had sex, before shouting rape and told him to get out.

Her claim was based on a 2007 Court of Appeal ruling that someone who is drunk may not be capable of giving consent, shouting ‘It?s because of b******s like you that the law has been changed’. However, what the Court of Appeal held in R v Bree was that someone who is voluntarily intoxicated may not be able to give consent, but that there is every chance that they may be able to.

Mr Bacon’s trial lasted three days, and it took the jury just 45 minutes to return the ‘not guilty’ verdict. Judge Patrick Hooton said ‘The fact that she does not remember does not prove that she did not give consent. The fact that a person is drunk, or even very drunk, can, but doesn?t necessarily, affect consent’. The ‘victim’ was at least twice the drink-drive limit, with memory loss and loss of inhibition likely – but not certain.

Mr Bacon told police that he knew the ‘victim’ was drunk, but ‘she was still able to hold a conversation with me’. He reasonably believed that she had consented, and that she had enjoyed the sex: ‘She groaned. She gave the impression that she was enjoying it.’

The case of Bree forms a sizeable portion of my current Criminal Law essay on the Sexual Offences Act 2003, so I have to remain fairly fact specific here – the university rules on plagiarism are quite clear and as the essay isn’t due in until Thursday I have to be quite careful.

However, the ruling in Bree was not brought about to allow any woman who regretted their drunken stupidity to subsequently claim that they had been raped as a way of clearing their conscience. It was made to ensure that those people whose ‘freedom and capacity’ to consent to sexual intercourse had genuinely been affected by voluntary intoxication, were protected from vultures who prey on innocent, yet drunken, women.

There are people out there who are solely out for a quick ‘thrill’, and don’t care whether or not the woman in question has a boyfriend, a fiance or even a husband. Their only concern is having a one night stand and moving on – leaving the woman to deal with the consequences alone. The law needs to protect these women from these vultures – but only when their ‘freedom and capacity’ to consent has genuinely been diminished.

It is not to be used as a bargaining chip for women who still maintained said ‘freedom and capacity’, but were too weak to say no.

Mr Bacon’s case reassures me that the law is being enforced in the correct manner.