Intoxication of the complainant

The situation where there is no capacity to consent because of self-induced intoxication of the complainant

Which falls short of unconsciousness. It is fair to say that the uk government examined this gap in the law in

The light of the decision of the court of appeal in r v bree [2007] ewca 256, in which the court interpreted

The capacity to consent as something which “may evaporate well before a complainant becomes Unconscious”, and explained that “if, through drink (or for any other reason) the complainant has temporarily Lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting…”.

However, the court also made clear that the complainant may still retain the capacity to consent (or not)

Even if she has had quite a lot to drink, which means that essentially each case will turn on its own facts. The Uk government decided not to change the law following this decision.

It would seem best, given that this is a situation which arises very often, and which gives rise to exploitation, that a comprehensive definition of consent should include provision for the situation where the complainant's consent is compromised by her voluntary intoxication. After all, the drink driving laws presume that after consumption of a very modest quantity of alcohol, our capacity to control a car safely is seriously affected. Of course, this would mean that the conduct of the complainant would still be under scrutiny.

Some guidance as to what might be included in such an expanded definition will be found at Sections 75 of the UK SOA 2003 (evidential presumptions about consent) and Section 76 ibid. (conclusive presumptions about consent), which taken together provide a list of situations in which the absence of consent may be presumed, and except for the two rare situations outlined in Section 76, further provide that it is open to the accused to introduce sufficient evidence to show that there is an issue as to whether the complainant consented, in relation to the particular situation. This list of situations does NOT cover the situation where the complainant's capacity to consent is impaired by self-induced intoxication, but he/she is not “asleep or otherwise unconscious” (vi). It is important to note also that the list of situations is a closed one. A more useful starting point might be the Criminal Code of Canada definition of consent (vii) and attendant open list of situations in which consent is not obtained, adapted to take account additionally of the situation of the complainant whose capacity to consent is affected by self-induced intoxication but who is conscious.

In addition to the lists of situations in other jurisdictions in which it is presumed that there is no consent, the appendices contain a draft compound list of such situations for discussion.

Other jurisdictions, for instance Canada, have simpler definitions of consent: “voluntary agreement” is the phrase used in its criminal code. South Australia and New South Wales both have “freely and voluntarily agrees”, while Victoria has “free agreement”. New Zealand does not have a positive definition of consent, but there is a proposal to amend their Crimes Act 1961 to include a definition containing the same positive elements as the England and Wales one (viii).

As it is only “capacity” that has in practice given rise to difficulty among the elements in the England and Wales definition, it would seem that the focus should be on making sure that the list of situations in which there is no consent is as comprehensive as possible, and is not closed. Examples are to be found in the Criminal Code of Canada, Article 153 (3), appended hereto with proposed emendations to include voluntary self-intoxication, and Section 128A of the Crimes Act 1961 of New Zealand, as well as the sections 75 and 76 of the Sexual Offences Act 2003 of England and Wales (also appended). Note that the England and Wales legislation excludes the voluntary intoxication situation and is a closed list of situations. It also frames the list as a series of presumptions, only two of which are conclusive. The legislation from the other two jurisdictions is more straightforward to understand and implement, and is not framed as a list of presumptions.

It appears that now is the time to enact a new expanded comprehensive definition of consent which incorporates the benefits and avoids some pitfalls at least of the definition used in the UK Sexual Offences Act 2003 (ii). Some authors have identified, for instance, that the UK definition does not give any guidance as to whether the complainant must articulate their consent by words or action (iii). In addition, the definition might be understood as meaning that it must be decided first whether the complainant agreed by choice, and then later, whether he/she had the freedom and capacity to do so. An alternative reading is that the issues of freedom and capacity should be addressed first, leaving the question of agreement to be addressed only if either freedom or capacity is lacking. There are further difficulties with the general understanding of such words as choice, freedom and capacity (v).

However, it appears from the subsequent cases that the most important practical issue has been “capacity”.

The England and Wales legislation does not contain any definition of capacity itself, and its list of situations where there is presumed to be no consent, at sections 75 and 76 of the SOA 2003, does not expressly include the situation where there is no capacity to consent because of self-induced intoxication of the complainant which falls short of unconsciousness. It is fair to say that the UK Government examined this gap in the law in the light of the decision of the Court of Appeal in R v Bree [2007] EWCA 256, in which the Court interpreted the capacity to consent as something which “may evaporate well before a complainant becomes unconscious”, and explained that “if, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting…”.

However, the Court also made clear that the complainant may still retain the capacity to consent (or not) even if she has had quite a lot to drink, which means that essentially each case will turn on its own facts. The UK Government decided not to change the law following this decision.

It would seem best, given that this is a situation which arises very often, and which gives rise to exploitation, that a comprehensive definition of consent should include provision for the situation where the complainant's consent is compromised by her voluntary intoxication. After all, the drink driving laws presume that after consumption of a very modest quantity of alcohol, our capacity to control a car safely is seriously affected. Of course, this would mean that the conduct of the complainant would still be under scrutiny.

Some guidance as to what might be included in such an expanded definition will be found at Sections 75 of the UK SOA 2003 (evidential presumptions about consent) and Section 76 ibid. (conclusive presumptions about consent), which taken together provide a list of situations in which the absence of consent may be presumed, and except for the two rare situations outlined in Section 76, further provide that it is open to the accused to introduce sufficient evidence to show that there is an issue as to whether the complainant consented, in relation to the particular situation. This list of situations does NOT cover the situation where the complainant's capacity to consent is impaired by self-induced intoxication, but he/she is not “asleep or otherwise unconscious” (vi). It is important to note also that the list of situations is a closed one. A more useful starting point might be the Criminal Code of Canada definition of consent (vii) and attendant open list of situations in which consent is not obtained, adapted to take account additionally of the situation of the complainant whose capacity to consent is affected by self-induced intoxication but who is conscious.

In addition to the lists of situations in other jurisdictions in which it is presumed that there is no consent, the appendices contain a draft compound list of such situations for discussion.

Other jurisdictions, for instance Canada, have simpler definitions of consent: “voluntary agreement” is the phrase used in its criminal code. South Australia and New South Wales both have “freely and voluntarily agrees”, while Victoria has “free agreement”. New Zealand does not have a positive definition of consent, but there is a proposal to amend their Crimes Act 1961 to include a definition containing the same positive elements as the England and Wales one.

As it is only “capacity” that has in practice given rise to difficulty among the elements in the England and Wales definition, it would seem that the focus should be on making sure that the list of situations in which there is no consent is as comprehensive as possible, and is not closed. Examples are to be found in the Criminal Code of Canada, Article 153 (3), appended hereto with proposed emendations to include voluntary self-intoxication, and Section 128A of the Crimes Act 1961 of New Zealand, as well as the sections 75 and 76 of the Sexual Offences Act 2003 of England and Wales (also appended). Note that the England and Wales legislation excludes the voluntary intoxication situation and is a closed list of situations. It also frames the list as a series of presumptions, only two of which are conclusive. The legislation from the other two jurisdictions is more straightforward to understand and implement, and is not framed as a list of presumptions.

Subjective recklessness as to whether there is consent or not to be replaced with a belief in such consent which is both honest AND objectively reasonable Subjective recklessness as to the presence or absence of consent, when alleged, is very often met with the defence of honest (though possibly unreasonable) belief in the complainant's consent. The current situation, both under the 1981 Act and the 1990 Act, is that the accused's belief that the other person is consenting to the sexual act in question does not have to be reasonable in any objective sense, only honest. However, the Court only has to “have regard to” the presence or absence of any reasonable grounds for such a belief, it does not have to decide whether the belief was reasonable or unreasonable. It will readily be seen that this means that the accused's belief does not have to be objectively reasonable for it to be an effective and complete defence, if proved.

Where an accused person's belief in the consent of the complainant to a sexual act is not reasonable, he/she should surely not be allowed to rely on it. In other words, the issue for the decision maker should not be whether the belief of the accused was honest although unreasonable and mistaken, but whether a reasonable person would have come to the same conclusion. The focus would therefore be more on the conduct of the accused rather than on that of the complainant, and the standard of behaviour expected of any person in the situation of the accused would be higher.

Sexual Offences Act 2003, England And Wales, Sections 75 And 76

Section 75 Evidential Presumptions About Consent

If in proceedings for an offence to which this section applies it is proved—

  1. that the defendant did the relevant act,

  2. that any of the circumstances specified in subsection (2) existed, and

  3. that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

The circumstances are that—

  1. any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;

  2. any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

  3. the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;

  4. the complainant was asleep or otherwise unconscious at the time of the relevant act;

  5. because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

  6. any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

In subsection

  • (a) and
  • (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

Section 76 Conclusive presumptions about consent

If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

  1. that the complainant did not consent to the relevant act, and

  2. that the defendant did not believe that the complainant consented to the relevant act.

The circumstances are that—

  • (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
  • (b) the defendant intentionally induced the complainant to consent to the relevant act.

The circumstances are that—

  • (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
  • (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

“Allowing sexual activity does not amount to consent in some circumstances:

1. A person does not consent to sexual activity just because he or she does not protest and/or offer physical resistance to the activity.

2. A person does not consent to sexual activity if he or she allows the activity because of:

  1. force applied to him/her and/or to some other person(s);

  2. the threat (express or implied) of force being applied to him/her and/or some other person(s), or

  3. the fear of the application of force to him or her or some other person(s).

In any of the cases in subsection (1) above, it is immaterial whether it is the accused who applies force and/or threats of force against the complainant and/or other(s), or not.

A person does not consent to sexual activity if the activity occurs while he/she is asleep or otherwise unconscious.

A person does not consent to sexual activity if the activity occurs while he/she is so affected by alcohol and/or some other drugs(s) that he/she cannot consent or refuse to consent to the activity, whether or not that person took alcohol and/or some other drugs voluntarily

A person does not consent to sexual activity if the activity occurs while he/she is so affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he/she cannot consent or refuse to consent to the activity

A person does not consent to sexual activity with another person if he/she allows the sexual activity because he/she is mistaken about the identity of that person

A person does not consent to sexual activity if he or she allows the activity because he or she is mistaken about its nature and quality

A person does not consent to sexual activity if that consent is expressed by the words and/or conduct of someone other than themselves

A person does not consent to sexual activity if he/she was counselled and/or incited by a person in a position of power, trust and/or authority in relation to him/her, to engage in that activity

A person does not consent to sexual activity if he/she expresses by word and/or conduct, a lack of agreement to engage in that activity

A person does not consent to sexual activity if, having first consented to sexual activity, he/she expresses by words or conduct a lack of agreement to continue to engage in that activity

This section does not limit the circumstances in which a person does not consent to sexual activity.”