Drunken consent ...

I have been writing an essay on copyright protection on the internet which has filled me with a passionate hatred of the place and following on from that a reluctance to blog. However the news today was so interesting that I just couldn’t resist.

I woke up to much discussion of the rape law on radio 4 this morning. In November a High Court ruling received extensive media attention as the headlines screamed “drunken consent is still consent”. In this case the woman in question had passed out in a corridor and could not recall whether she had consented. The offence of rape as it currently stands (Sexual Offences Act 2003) requires that the offender intentionally penetrates the vagina, anus or mouth of another person with his penis, that the victim does not consent and that the offender does not reasonably believe the victim consents. A person is said to consent if they agree by choice and have the freedom and capacity to make that choice. As I see it this raises a couple of questions in relation to this case. Firstly ‘agree by choice’ implies activity rather than passivity – is it possible to consent by not disagreeing? Secondly, what state of inebriety is required before the individual is said to lack capacity to make the choice? If the victim is ‘stupified or overpowered’ i.e. unconscious there is a rebuttable presumption that they did not consent. However there are degrees of drunkenness and this is an area of law fraught with problems.

I find myself torn between two positions. Firstly in this High Court case it seemed there was genuine, reasonable doubt about whether consent was given and I firmly believe in a legal system that does not convict where there is reasonable doubt about whether the defendant was guilty of the crime. As the claimant introduced doubts and uncertainties in her evidence I feel that the right decision was probably made (although I must note I have only read newspaper reports of the case). However the infamous direction to the jury that ‘drunken consent is still consent’ seems suspect. There surely must reach a point where drunken consent is not valid consent. I was discussing this with someone earlier today who suggested that levels of drunkenness should be taken into consideration. Therefore where a victim was extremely drunk and the defendant sober it should lean towards a finding of no consent, and alternatively where both were equally drunk it should lean towards a finding of consent. I feel that there is something lacking in this solution, and the person who suggested it agreed that it did little to address the problem.

Thus it was interesting to hear that the government is initiating an awareness raising campaign informing men that they must ensure a woman has consented to sex. It is great to see that the government recognises there is a problem but nevertheless worrying that we live in a country where men may not realise that if they have sex with a woman without consent it will be rape. The new law made a valiant effort to rectify this and the requirements for consent with capacity seem on paper to be a great step forward, but this is not being put into practice. Conviction rates for rape are appalling and it seems there is still much to be done, socially and in the law, before any change to this will occur. This area is so complex and problematic that a brief advertising campaign will do little to change the situation and seems perhaps to be merely a token gesture. Rape itself and rape trials run to the heart of the misogynistic or patriarchal attitudes that still subsist in our society and the solution to this problem seems far from clear.