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Men face jail for rape if women are 'too drunk' to consent in bed to boost convictions
Last updated at 21:07pm on 28.12.06
Men who have sex with drunk women could face a rape charge
Men who have sex with drunken women will be at risk of being convicted of rape under new laws to be considered by ministers.
The legal shake-up would mean a woman would be considered incapable of giving consent to sex if she had been drinking heavily.
Police would be asked to carry out blood and urine tests on a woman who complained of rape to find out how much alcohol is in her body. They would then used "back calculations" to work out how drunk she was at the time of the alleged attack.
A "drink and sex limit" would sweep away the confusion and controversy in the courts surrounding the issue of when a man accused of rape can claim he believed a woman gave her consent to sex.
But it would open the way to prosecutions of husbands or regular boyfriends who have sex with drunken wives or partners as well as fierce arguments over medical evidence and real levels of intoxication of alleged victims.
A consultation document is to be published by the Home Office in the New Year that will lay down the basis for new laws and try to meet Labour's aim of forcing up numbers of rape convictions. At present only one rape accusation in 20 ends in a conviction and ministers are convinced that means rapists are getting away with it.
Almost all disputed rape cases are of "partner", "acquaintance" or "date" rape in which both parties were known to each other before the alleged attack happened.
A rape law making it an offence to have sex with a woman who has reached a set level of drunkeness is to be proposed by the Home Office committee that four years ago recommended the disastrous reclassification of cannabis that made possessing the drug less of a crime.
The Advisory Council on the Misuse of Drugs is to report next month suggesting the use of medical tests and back calculation.
A study carried out last month for the Association of Chief Police Officers suggested that a women could be expected to show 'marked intoxication levels' after drinking the equivalent of two bottles of wine.
It found that in 120 cases of sexual assault examined by researchers, in 119 cases the woman had been drinking.
But because of "marked time delays between the collection of samples and the incident", alcohol could be detected by tests in only 62, just over half, of the cases. Blood tests can find alcohol in the body 24 hours after drinking and urine tests after 72 hours.
The ACPO research found that in 31 cases alcohol levels at the time of the incident could be estimated by "back-calculating".
It said it was "significant" that 22 cases showed the woman had 200 milligrams of alcohol for every 100 millilitres of blood.
This level is equivalent to eight 175 milliletre pub "standard" glasses of wine, or two and a half times the drink driving limit.
But the ACPO report warned that there are "caveats about the approximate nature of the calculations".
Back calculations usually work on the basis that the body breaks down one unit of alcohol - half a pub standard glass of wine - every hour. However, alcohol breaks up in different bodies at different rates.
The ACPO report said: "If one considers a social drinker, one could expect marked intoxication at levels of 200 milligrams per 100 millilitres and symptoms could include reduced inhibitions, disorientation, impaired judgement and co-ordination, drowsiness, memory loss and, at higher levels, unconsciousness."
The law already suggests that a woman who is asleep or unconscious is less likely to have consented to sex. Since 2003, a man accused of rape has had to show he had "reasonable" grounds for believing a woman consented. Before then, he had only to demonstrate that he believed she had consented.
Solicitor General Mike O'Brien is considering the drink and sex limit among proposals for new rules that could also include fresh guidance for juries on matters of consent and the right for defendants to call experts on rape who would explain to juries how damaging to a victim the offence is.
A Home Office spokesman confirmed yesterday that the Advisory Council has produced a report and added: "The results will be published in the New Year. It will then be for ministers to decide what may be the right policies to take forward."
But criminologist Dr David Green of the Civitas think tank said: "They are trying to introduce scientific certainties where there are no scientific certainties. The pretence that there can be certainty is likely to lead to miscarriages of justice.
"It is much better to leave these things to the good sense of juries to decide." The legal pitfalls around rape and alcohol were powerfully illustrated in a landmark case last year in which a security guard had sex with the 21-year- old woman student while she was lying drunk and unconscious in a corridor outside her flat in a university hall of residence.
Even though the security guard, 20-year-old Ryairi Dougal, was a stranger to the woman, a judge at Swansea Crown Court instructed the jury to bring in a not guilty verdict because she could not remember whether she had given consent.
"Drunken consent is still consent," Mr Justice Roderick Evans told the jury.
Case study: Ryairi Dougal was cleared of rape in a landmark case last year because his alleged victim was too drunk to recall events.
The security guard had sex with the student while she was lying drunk and unconscious in a corridor outside her flat in Aberystwyth University.
The case hinged on whether the 21-year-old he was accused of assaulting had consented to sex.
Swansea Crown Court was told by the woman there was "no way" she would have agreed, but when questioned by the defence, she acknowledged she could not remember anything and therefore could not definitively say if she had consented or not.
Even though 20-year-old Mr Dougal was a stranger to the woman, the judge told the jury to bring in a not guilty verdict because she could not remember whether she had given consent.
Reader views (7)
Here's a sample of the latest views published.
When you get drunk and do something stupid, like drive your car into a telephone pole, or start urinating in the middle of the street, you will be arrested and charged as if you were sober.
That is because the law does not recognize being drunk as an excuse to act like an idiot.
So, if a woman gets smashed and has sex with a man, then wakes up the following day regretting it, she has nobody to blame but herself.
- Eric, Raleigh, NC, United States
This is ridiculos! This is how men have got away with rape of women for years, the new laws don't mean a thing when it hit's the judical system! Male selfishness & knowing they can get away with it increased the figures in the area of rape on women. This is pure male dominance & sexism, as if a woman could ever defend herelf against a man who intends rape, even if she is not in a stupor to begin with, a woman will freeze in fear, will perhaps say anything in fear. Rapists are automatically drawn to drunken women, even if they have not plied her with drink themselves to begin with! the true statistics of rape on women are covered-up, police helped with women not reporting rape for years, this area was given ' A blind eye ' because of the judical system & the police themselves. Britain has selfish men welding power, they do not give a damn about women suffering rape, just an outward appearance that they do, mainly to human rights courts. Even the home office statistics are dubious to say the least. The fact is the system has helped breed male rapists, one knows if you can get away with it, you can get away with it again & again, that helped spread the message ' You can get away with rape fellas ' , so they do rape with confidence to boot!
- Shelley, England
You got trashed, too bad. No one made you drink. Who knows, maybe he was even worse off and you seduced him, woke up, thought oh god, and pressed charges. So he's screwed because you're an idiot. I'm sorry, but this is yet another example of anti-male sexism. I have no lack of disgust for those who use underhanded means to get laid (date rape and such) but that doesn't mean that she shouldn't be held accountable for her actions. YOU choose to get tanked and do something you didn't want too? Tough. Next time, don't get drunk.
- Kell, Mtl, Canada
the best thing to do is not get so plastered, so you cant remember what you did!!!!! this sort of law, will make innocent men classed as sex offenders before they have a trial. Date rape is when you are drugged unknowingly! not when you drink alcohol to the limit where you cant remember where, what or who you are with. As women we should keep ourselves safe!!! to me this sounds like a case of regret, where you wake up and regret what you have done!!! it undermines the true victims of rape and date rape.
- Anon, england
This was a disgraceful direction from the judge and he should be sacked for it. The prosecution in this case also should have properly prepared the victim for this type of questioning and should have objected to the question on grounds of its complete and utter lack of logic.
The defence team used a "language trick" to bring into question the memory of the victim and if she "remembered" giving consent or not; but how can a unconscious person remember anything?
e.g. Do you remember robbing the store last night? NO sir, I was in bed asleep. Ah, but do you remember NOT robbing it then? No sir, I don't remember NOT doing anything as I was asleep. AHHHHH, well if you don't remember NOT doing it then that means you cannot say you didn't do it then? *cough cough*
It was up to the jury to decide whether or not the accused had reason to believe that the woman consented, and clearly she couldn't if they accept that she was unconscious.
To give direction to the jury that the woman "cannot remember NOT consenting and therefore she might have consented and the accused cannot be found guilty" is one of the worst pieces of Judicial direction I have ever heard.
Because of this incorrect legal direction the whole area of rape law is now in disarray when really the judge should simply just be sacked as he clearly doesn't have the required logical thinking capacity to sit in such a position.
- Ciaran Mcgroggan, N.Ireland
You know what? The answer to this question is very simple. Get consent. If you don't have consent, find a bathroom and take care of yourself. If someone looks too drunk to be having sex, don't have sex with them. Stop making exuses for rapists.
- Someone, A place, A country
When a male is sober and a female is too drunk to consent sex, the male should be responsible and know if they have sex it is rape. Rape is rape if they were both drunk so be it but if there was a clear thinking mind involved, someone crossed the line. When two random people have drunk sex may be a complete different case with a partner or husband. This person is suppose to care about you, not take advantage of you incapable state...Especially if you are emotional. I agree that maybe adults who have random sex and were both under the influence, are both at fault. But in a case where their is one victim and a sober perpetrator, someone needs to be punished! I dont agree that drunk consent is still consent because research does show that alcahol does decrease capability to making clear decisions. People drink all the time, that doesn't mean that it's okay for someone to take advantage. Just because you make a mistake doesn't mean that someone can come and literally take advantage of your drunken state! If a male is sober and have sex with a heavily drunk female, that is definite RAPE.
- Koni Rodriquez, Jerome, Idaho
