Under the influence

Rape cases are notoriously difficult in court. There is a background of conflict between the idea that more should be done to achieve convictions and the anxiety that each step taken erodes the principles of fair trial. Whether defendants are convicted or not, there is a sense that the courtroom drama is damaging for complainants and there are some cases where juries are called upon to answer questions that even the most erudite scholars would find intellectually taxing.

Thus it was that the Court of Appeal was called upon to consider the question of capacity to consent to sexual intercourse after taking significant quantities of drink. The case was R v Bree [2007] EWCA Crim 804 AND, Lady Justice Hallett and Mrs Justice Gloster comprised the tribunal.

This was one of those cases where the case outlined to the jury in counsel's opening was different from the case upon which the crown invited the jury to convict in their closing address. The case was opened on the basis that the alleged victim was effectively unconscious during most of the sexual contact. She was therefore not in a position to consent. That is a relatively straightforward proposition. If she had been unconscious then she could not consent and if the defendant engaged in sexual intercourse with her, it would be rape.

The events were fairly commonplace. Two young men and two young ladies go out together. They drank to excess (which they were perfectly entitled to). At the end of the evening the couple in question return to the flat arm in arm. The girl was conscious because she had the capacity to gain entry using keys etc. The girl was sick in her en suite shower and recalled lying on the floor. The boy looked after her including washing her hair. He found pyjamas for her and left the room when she changed. Some time later he returned to check on her. Her next recall was of waking to find the defendant engaged in sexual activity with her which she did not want. She neither did nor said anything, having a sense of being outside her body observing events. Asked if she had a condom she said 'No'. In her mind she was saying such things as 'no' and 'get out of the room'. Her recall of events was patchy. Because of the gaps she could not say how she had responded during those periods. In a conversation afterwards she described herself as having been 'used'. She did not say 'raped'.

The boy was shocked when arrested. He looked after her and on his return she was definitely keen, awake, conscious and an active participant to the extent that he had to ask her to be quiet. She had removed her own trousers. The sexual contact ended when they realised neither had a condom. He had spent a long time on preliminaries because of the need to be sure about consent.

At the end of the case the crown accepted that she was not unconscious but said that she had not consented. Her ability to resist was hampered by alcohol but her capacity to consent remained. The court's view was that 'the question is not whether the alcohol made either or both less inhibited than they would have been if sober. Nor whether either might afterwards have regretted what happened'¦ If the complainant consents, her consent cannot be revoked. Moreover it is not a question whether both may have had a poor recollection of precisely what happened'¦ the essential question for decision, as it always was, was whether the evidence proved that the appellant had sexual intercourse with the complainant without her consent.' With the possible exception of the use of the word 'revoked' (which might imply that consent cannot be withdrawn) that is an unexceptional expression of the law. It was made even clearer later 'a drunken consent is still consent'¦ lacks delicacy but provides a useful shorthand accurately encapsulating the legal position'.

Thus the position is straightforward. Irrespective of how much a complainant may have drunk the question is whether she has capacity to consent and if she does have capacity how has she exercised it? The fact that the analysis of that question may be difficult does not mean that there should be any attempt to create a legislative framework prescribing the approach to be taken according to how much an individual had drunk. 'provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves'.

The difficulty in the present case was that the summing-up did not deal with the general problem nor the specific application to the facts of this case. What was required in such a case was assistance as to the meaning of capacity in a case where the complainant was affected by her own voluntary intoxication and an indication of the extent to which her intoxication could be taken into account when considering whether she consented. It was necessary to determine whether she behaved differently through the drink than she would have if sober. It was also necessary to analyse what impact her state would have on the defendant's reasonable belief.

No doubt the selection of an all-female tribunal for this case was coincidental. It is an important case because it carefully considers the way this common scenario should be dealt with in courts of first instance when faced with a drunk complainant, a drunk defendant and a divergence of view as to the extent of the drunkenness in either case and its impact on the issues. It certainly means that the idea that victim drunkenness precludes consent is not going to develop very far. This court took the sensible view that each case needs to be decided on its own merits in the context of a proper consideration of the law of capacity and the law on consent. It will definitely repay reading.