The capacity issue often leaves the accused and the victim arguing over either the level of intoxication, or if consent was given at all. The Importance of IntentionĬapacity and intoxication cause limitless problems in the courtroom when a person is accused of rape.
In Malone, Footnote 11 the court of appeal spoke of being physical unable to resist, but capacity to consent presumably asks of an assessment of the mind.
It is much more difficult to enter the realm of whether or not legal capacity to consent is present. Footnote 10 Such decision-making as to what is in their own best interest at the time may signify that the victim did have the capacity to make such a decision in regards to consent-but not the freedom of choice the law requires. What in fact might be happening is that the victim, having weighed up the accused’s physical size and strength against her own, decides struggling would not only be futile, but might make her situation even worse. Her lack of resistance may sound like a resounding “yes” to a man who subscribes to the traditional model of male aggression and female submission. Footnote 8 This in itself is problematic, especially for patriarchal tropes, as Kramer has observed: Footnote 7 It can also be expressed verbally whilst non-verbal clues speak louder of an unwillingness to go through with an act. It also covers judicial directions on the meaning of capacity and consent, another fundamental component to intoxicated rape cases.Ĭonsent is a tricky concept, as it does not relate directly to desire, but to willingness, and this can vary in degrees. Footnote 6 This includes the impact of stereotyping on decision-making, a vitally important part of the process for cases involving intoxication, where the victim is often blamed for her own demise. Footnote 5 The Judicial College’s Serious Sexual Offences Seminar Programme covers legal, evidential and social issues, as well as sentencing and updating of knowledge. It has been suggested that much benefit would be gained from judicial guidance on the types of situation in which consent cannot be established, Footnote 4 though judicial training is currently requested of judges every three years to remain eligible to deal with such cases. Footnote 3 Add to this a substance which can lower inhibitions and cause memory loss, it is no wonder that the courts find difficulty in navigating accusations of rape involving intoxication. Footnote 2 This is additionally given a three-tiered explanation and presumption about consent and when it can be legally given. Footnote 1 Rape law in itself is an intricate set of rules, asking for non-consensual intentional penile penetration without reasonable belief in consent. The government have expressed concern as to whether protection is sufficient for individuals who are vulnerable and may generally lack capacity to consent to sexual relations. The victim will be referred to as ‘she’, although the law here and all situations discussed are equally applicable to male rape. Using comparative analysis with other jurisdictions and their take on the offence of rape, the author seeks to discover if the current rules are sufficient to fit within twenty-first century western culture. The problem that often arises is the question on whether or not an intoxicated victim had the capacity to consent, or establishing if she did consent when memory of the event is hazy, possibly from both parties. This article seeks to explore the problems that surround establishing if legally valid consent has been given, with particular regard for cases where voluntary intoxication takes centre stage. Sexual offences in England and Wales have had a dramatic reimagining in the last 15 years, with the Sexual Offences Act 2003 establishing not only the boundaries of the most heinous of offences such as rape, but also defining one of the most important elements consent.