This essay aims to show that the criminal law in England and Wales is adequate in dealing in rape cases where the complainant was voluntarily intoxicated at the time of the alleged offences, but reforms are required in order to deal with similar cases in which the complainant was involuntarily intoxicated.
One of the main aims of the Sexual Offences Act 2003 is to provide coherent and clear sex offences that would protect victims from sexual violation. The underlying philosophy is to protect sexual autonomy. When an alleged rape occurs during intoxication, the relevant provisions of the Act would be s1(1) and s1(2). Most issues arise in s1(1)(b) and s1(1)(c), i.e., the prosecution must prove that the victim did not consent during intercourse and the defendant did not reasonably believe so.
If the victim(V) became unconscious after getting intoxicated both voluntarily and involuntarily, the rebuttable presumption of s75(2)(d) will apply and it will be assumed that V did not consent. The onus would be on the defendant(D) to prove otherwise. V need not be unconscious throughout. In Zhang  , V had awakened momentarily during the relevant act; it was nevertheless held that s75(2)(d) applied because V was mostly asleep throughout intercourse.
It will be argued that definition of consent under s74 is unclear, however, it is very difficult to provide further statutory explanation for it. If V was voluntarily intoxicated during the alleged rape, the court will refer to s74, which provides the statutory definition of ‘consent’: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”. In Dougal  , V was drunk at a club and D helped her back to her flat and had intercourse with her. The prosecution withdrew the case because V could not remember whether she had consented to intercourse. This raised concerns that s74 does not provide adequate protection for victims who lacked the genuine ability to consent  . This is contrasted with H  , wherein it was held that the case was wrongly withdrawn from the jury where V could not remember whether she had consented to intercourse because of intoxication. V was drunk and alone. She somehow got into D’s car and had intercourse with D whom she barely knew. In Bree  , D and V were friends. D assisted V while she was intoxicated and puking. D later had sex with V while V was asleep. V’s memory during intercourse was patchy, while D maintained that V had consented to his advances. The court, in holding that D did not rape V, stated that when interpreting s74, the question was whether V had temporarily lost her capacity to agree to intercourse, if so, s/he was not consenting. However, if V despite being intoxicated, remained capable of choosing whether to have intercourse, and agreed to do so, there was no rape. Sir Igor Judge P opined that criticism of Dougal ‘missed the essential point’. Dougal merely restated that ‘drunken consent is still consent’  . He stated that a proper construction of s74 leads to clear conclusions and although consent may evaporate before V became unconscious, whether this is so is fact specific, and depends on ‘the actual state of mind of the individuals involved on that particular occasion’  .
It will be argued that Sir Igor missed the point regarding concerns about s74. The ruling in Bree meant that V was capable of consenting despite being drunk. Thus, the prosecution will need to prove beyond reasonable doubt that V did not consent in her intoxicated state. For example, in H  , it was possible to infer from the circumstances leading to intercourse that V did not consent to sex. Although V could not remember whether she had consented to intercourse, the prosecution still had a plausible case which was left to the jury. However, the direction in Bree makes it more difficult for the prosecution to secure a conviction of the defendant. In Dougal, it was a case of D’s words against V’s. In such circumstances, it is difficult to prove beyond reasonable doubt that V did not consent, which was fatal to the prosecution’s case. This is compounded by the fact there are diverging views on the notion of consent. Hurd perceives consent as attitudinal, stating that “a person does all she needs to do in order to alter the moral rights or obligations of another simply by entertaining the mens rea of consent.” Whereas Brett believes that consent must be displayed through “speaking or doing”  . These conflicting views are reflected in Finch and Munro’s study of jury trials, wherein they observed that there were significant differences in the interpretation of ‘capacity’, ‘freedom’ and ‘consent’ in s74. Some jurors presumed consent in the absence of dissent, because they had concluded that V had retained the capacity to consent despite intoxication; other jurors expected some evidence of struggle to establish non-consent  . Finch and Munro also noted that “[the Act] generates the opportunity for the introduction into the jury room a range of (ill-founded) views about ‘appropriate’ socio-sexual behavior’…the extent to which jurors relied on these questionable stereotypes to afford leniency to the defendant within the confines of the present study was noteworthy”  . Hence, referring to the above study, Rumney and Fenton concluded that the “consent provisions in the 2003 Act require further statutory explanation”  .
This uncertainty is problematic for both the defendants and victims. It puts the prosecution in a dilemma on whether s/he must prove that V positively dissented or the fact that V simply did not consent was sufficient. The ‘ill-founded’ views of ‘socio-sexual behavior’  which pervade other institutions like the police also makes it more difficult for rape victims to seek help, because they may face accusations of bringing it on their own heads. There may also be a contravention of the ‘fair warning’ principle of criminal law. Since the definition of consent is vague, there is a possibility where D had intercourse with V, believing there was consent because V did not positively dissent, yet get caught by s74 should the court rule that consent is attitudinal in nature. Therefore, the definition of consent requires further clarification.
It is difficult to provide a statutory explanation of consent. Two possible reforms will be considered. The first proposal is to prescribe a statutory limit to blood alcohol level above which consent will be nullified a la drink driving offences. This is problematic for two reasons. Firstly, Ashworth argues that the practice of ‘back-calculating’ the blood alcohol level during the alleged rape has limited usefulness, since V can agree to intercourse in advanced stages of intoxication.  Secondly, alcohol affects people differently. In Bree, V’s alcohol blood level was calculated to be within the legal limit for driving  . She would have been deemed fit(legally) to drive a car, yet she was vomiting and drifting in and out of consciousness. Secondly, there were suggestions to declare that someone who is inebriated is incapable of consenting or create an evidential presumption which reflects this. The former has been rejected by the Home Secretary on the basis of preventing mischievous accusations.  Another difficulty in maintaining that proposal is that if intoxication negates consent, based on that reasoning, killers should be deemed incapable of forming mens rea. This will contradict authorities like Sheehan  .
If V was involuntarily intoxicated, this would give rise to a rebuttable presumption under s75(2)(f). In Bree, Sir Igor opined that s75(2)(f) is ‘clearly adequate to deal with the situation when a drink is ‘spiked’, but does not address seductive blandishments of ‘just one more drink’.  The essential ingredients of s75(2)(f) are “administration/causing to be taken”, “without V’s consent”, and “capable of causing or enabling V to be stupefied or overpowered”. S75(1) provides that the defendant must be aware of the situation in s75(2)(f) before s75(2)(f) can apply.
There are concerns that the ingredients of s75(2)(f) lack clarity. “Causing to be taken” has a wide meaning, and can include threats and deception as to the nature of substance, while “administration” infers a kind of direct application  . Finch and Munro noted that this raises difficult questions about the involvement of the recipient in taking the substance and is difficult to be conceptualized in some situations.  For example, what if V mistakenly consumes the intoxicant D hands her? D had provided V with the intoxicant, but V had consumed it through her own mistake. The second issue would be “consent”. It is unclear what level of pressure, ranging from mild threats to that of violence, will vitiate consent. Finch and Munro noted that in situations where V was misled on the alcohol strength, it would be difficult to establish whether V ‘consented’. On one hand, V is not deceived on what s/he believes s/he is drinking, thus it might be argued that the drink is not adultered, despite containing more alcohol than s/he believed. On the other hand, it can be argued that V is not consenting to alcohol of that particular strength.  This leads to the conclusion that s75(2)(f) lacks clarity. However, common law may provide guidance on ‘consent’. In Linekar  , D had intercourse with a prostitute but failed to pay for her services. It was held that failure to pay did not vitiate consent as there was no deception as to the nature of the act and identity of the person; the act was agreed by both parties, the payment was held not to contribute to the definition of intercourse itself. Thus, it can be argued by analogy that consent in the alcohol case was not nullified because there was no deception on the drink(alcohol) and that D was fully aware of the effects of alcohol. Finally, it is unclear what ‘stupefy’ means. Allen notes that the effect of some drugs is to impair consciousness rendering V less resistant to demands without being reduced to unconsciousness. He further suggests that the courts should interpret “stupefy” in a way which reflects this or the provision would be rendered nugatory  . This is contrasted with the medical definition of “stupefy”  which is to cause a person to be in a state of near unconsciousness. To define ‘stupefy’ to include ‘more compliant’ would be incongruent. Thus, Finch and Munro  concluded that the definition of “stupefy” lacks clarity. When balancing both arguments, English courts will find the New Zealand Court of Appeal case of Sturm  persuasive. Therein the court weighed both arguments and defined ‘stupefy’ as follows: “to cause an effect on the mind or nervous system of a person which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime”  . This definition appears to address the need for clarity and would adequately cover a range of intoxicants. It will be difficult for the prosecution to raise the rebuttable presumption of s75(2)(f) because its ingredients have not been defined clearly.
Another concern of s75(2)(f) is the lack of a need to prove stupefaction. Elvin noted that ‘capable of causing or enabling’ in s75(2)(f) implies that once it has been established that the intoxicant involved has overpowering or stupefying qualities, it is unnecessary to prove that it did in fact have this effect.  On one hand, this potentially raises the conviction rate of rape cases by reversing the burden of proof unto D. Moreover, it removes the focus from the conduct and sexual history of V, which can be a relief for victims since they need not recount the most intimate details of their lives in court which subjects them to character assassination. This is hurtful and may lower V in the eyes of the jury. S75(2)(f) is also helps V because it is difficult to prove stupefaction, since ‘back-calculating’ the effect of the intoxicant is often inaccurate  . On the other hand, Tadros notes there may be situations where V may have taken the intoxicant without being stupefied  . Thus D may spike V’s drink but V fails to get stupefied. However, V later has consensual sex with D which V later regrets, and upon learning that his/her drink had been ‘spiked’, V decides to bring charges against D. The rebuttable presumption under s75(2)(f) would be invoked and it will be assume that V did not consent. If D cannot prove otherwise, he will be convicted although V consented. This case would be better dealt with using a lesser charge under the Offences against the Person Act 1861, s24. This would be oppressive and violates the criminal law principle of ‘fair labelling’. Moreover, there will be a violation of Art6(2) of ECHR, which is the presumption of innocence requirement. In the aforementioned case, the prosecution need not prove beyond reasonable doubt that D had intercourse with V without V’s consent, yet D must prove that V had consented to intercourse. It is similar to requiring D to prove that he was not guilty. Tadros concluded that the prosecution ought to be required to prove that V was stupefied  . His concern may be partly alleviated by s75(1)(c) which provides that D must be aware that a s75(2)(f) situation exists, thereby putting him ‘on notice’ that V may be unable to consent. However, this is a partial solution. The ultimate recourse lies on the prosecution’s discretion not to raise oppressive charges, which reflects a failing of substantive law. Hence, s75(2)(f) is unsatisfactory; the prosecution should prove that V had been stupefied.
In conclusion, the central issue on how the law deals with cases wherein the victim was voluntary/involuntary intoxicated is to balance the need to protect vulnerable victims through raising the conviction rate of rape with other principles of criminal law. It is submitted that the former aims ought to be advanced as long as it is consistent with the latter. For voluntary intoxication cases, the definition of consent in s74 is unclear. However, as illustrated above, it is difficult to reform the law without alleviating the Home Secretary’s concern  as well as undermining other criminal law principles  . Thus, while Bree’s direction is unsatisfactory, it is currently the only plausible approach. Regarding s75(2)(f), it is suggested that a ‘rape through involuntary intoxication’ offence be created, incorporating the following elements: (a) V was ‘stupefied’, using the definition in Sturm  ; (b) V was intoxicated unknowingly or intoxicated through force, threats thereof or other forms of intimidation; and (c) D was aware of a situation of (a) and (b) exists. A separate defence of consent should also be created  . This defines the offence more clearly through outlining the key ingredients in s75(2)(f). It also prevents the problems associated with the lack of need to prove stupefaction through element(a) and confers V the advantage of not needing to prove consent since consent is not included within the offence. However, D’s position is weakened compared to s75(2)(f) since D must prove stupefaction which is difficult. Nevertheless, this should be adopted in order to make rape laws in line with other principles of criminal law.