Morning:
13°c
An awesome and ridiculous film that leaves you thrilled beyond the point of your natural endurance
London faces a wave of bus and Tube strikes that could cause chaos for millions of passengers as unions walkout over pay and conditions
More...
It's not always rape if a woman is drunk, says judge
Last updated at 10:52am on 27.03.07
Sir Judge Igor: A woman cannot claim rape just because she was drunk
A woman cannot claim rape just because she was drunk, a top judge declared yesterday.
The Appeal Court ruling freed a young man jailed for rape after he had sex with a drunken student.
It also raised deep doubts over the Government's latest attempts to toughen rape laws.
Plans include a 'sex breathalyser' law under which a woman who had consumed a certain amount of alcohol would legally no longer be able to consent to sex.
But the Deputy Lord Chief Justice, Sir Igor Judge, and two other senior judges branded the idea unrealistic.
A woman who is very drunk may still be capable of agreeing to sex, they said.
They quashed the conviction of software engineer Benjamin Bree, 25, jailed for five years in December after a drunken evening with a 19-year-old student.
The girl drank between four and six vodka Red Bulls and two pints of cider and Mr Bree was also drinking heavily.
They returned to her hall of residence at Bournemouth University, where, she told Bournemouth Crown Court last year, she was 'continually throwing up'.
She said her next memory was waking up to find Mr Bree having sex with her. She told the jury her memory was "very patchy" and I knew I didn't want this but I didn't know how to go about stopping it".
Mr Bree told the court she had given her consent and "seemed keen".
Sir Igor, sitting with Lady Justice Hallett and Mrs Justice Gloster, quashed the conviction because he said the trial judge's directions to the jury had been "vague in the extreme".
He said the case meant the court had to examine the effect of voluntary heavy alcohol consumption.
Sir Igor said sex amounts to rape if the woman is incapable of giving consent. But things are different if she is still capable of making a decision.
He said: "If, through drink, or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse, she is not consenting.
"Subject to questions about the defendant's state of mind, if the intercourse takes place this would be rape.
"However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape." The judge said it would not be right to lay down rules - "some kind of grid system" - that say a woman who has reached a set level of drunkenness is incapable of consent.
He added: "Experience shows that different individuals have a greater or lesser capacity to cope with alcohol.
"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."
Ministers had been expected to publish a paper setting out a new law on rape and alcohol early this year.
It has failed to appear and there has been speculation that the Government has run into deep opposition from the judiciary.
Earlier this year the Council of Circuit Judges, which represents 637 judges who sit in Crown Courts, said it should be left to juries to decide whether a woman is capable of consenting to sex.
Home Secretary John Reid and his ministers remain committed to pushing up the number of convictions for rape, which they say is far too low.
At present only one complaint in 20 ends in the conviction of a man in court.
The Home Office said yesterday: "We need to tackle the myths, particularly the view that victims are either partially or fully responsible for the assault they have experienced if they have been drinking.
"Rape is never the responsibility of the victim, whatever the circumstances."
The Home Office has been considering a study by the Association of Chief Police Officers which found that a "significant" number of rape and sexual assault victims had drunk at least the equivalent of eight pub glasses of wine.
This is equivalent to two and a half times the drink driving limit.
At these levels, said the ACPO study, a woman can be expected to show "marked intoxication levels".
But it warned that back calculations used to work out how drunk a woman may have been at the time of an alleged rape could give only approximate answers.
Reader views (16)
Perhaps the problem might lie in the fact that people shouldn't be drinking with people of whose character they are unsure. We all know alcohol loosens inhibitions, so, shouldn't we take that into account in our relationships? Alcohol also dulls perceptions of the senses. So, how much fun can sex be for two people who are too drunk to know or feel what they are doing? That's like taking a piece of raw meat in each hand and clapping. To tie everything together, drunk sex abrogates feeling for both other and for self in both the physical and the figurative senses.
- Chuck Moody, Grangeville, USA
So, if a male had too much to drink, and ended up having sex with a woman. Then, in the sober light day, realized it was a horrible mistake, then the woman is guilty of rape?
- Bruce, Fife, Scotland
I see both side of this story equally, it is the reposibility of both individuals to make sure that it is a consensual act.
If a woman is extremely drunk a man should recognize this.
Equally a woman should relise the risk of drinking to the point were consent becomes blurred.
- Stuart, London
This is such a surprise, the rape law weighs in favour of the male yet again. As far as I'm aware, drinking (whether by males or females) is yet to become a crime. So why are such a large number of people still telling us it is the responsibility of a woman, to remain sober, otherwise she is responsible for being raped!
The problem doesn't lie with this particular law anyway, it lies with the whole process including, the police, the CPS, the judiciary system etc. - is there another so called civilised country that has rape convictions rates as low as ours - 5.2% and dropping.
As another commenter says above, most people that make the blase comments that effectively put all or most of the blame on an alleged victim, have no experience of rape or rape of a loved one.
- Suzy M, London, UK
The issue isn't about the crime, it's about the decision. If a woman makes a decision she later regrets because she'd had a few drinks, why should that always be a man's responsibility? Of course rape is an awful crime, but so is falsely accusing someone just because you wouldn't have agreed to sleep with him sober.
- Sez, London
So does this give men the green light to target drunk, vulnerable women and have sex with them even if they are comatose? I have two sons and I will do my upmost to bring them up to treat women with respect. I would not like them to think that women purely exist to satisfy their sexual urges. Yes, some women do go out and party hard and wear hardly anything at all, but that does not mean they are "easy meat". They are just enjoying themselves and letting off steam - in the same way that many men do. I have no sympathy for men who take advantage in a predatory way.
- M, Bedford
Once again the law swings in favour of the male which to my mind is a bad thing.
For any woman to bring a case of rape takes a great deal of courage and far too often it would appear that the woman is the one on trial.
- Mike Melbourne, Bedford
Common sense, at last! How on earth could the government actually consider legislating that, in the case of a sexual act between two drunk people, the man is legally responsible for his actions and the woman isn't?
- Moz, London
Until people have experienced rape either directly or of a loved one, I see that most are at best, insensitive to the issue judging by the comments I've seen so far. Rape is a horrid crime, and the purpose of the government's initiative was to increase the conviction rate from a miserable 5%. If that means taking away people's "liberty" of taking advantage of an intoxicated woman, then so be it. As for the comment that drink drivers have to take responsiblity for their actions, so why shouldn't women, there can never be any dispute on whether a crime has been committed with a drink driver.
- James, London, UK
Heh, that will work well.
"Before we proceed to our evening entertainments, my dear, there are just a few 'technalities' to take care of. First, allow you to introduce you to my phlebotomist, Dave. Dave will be performing tonight's blood-test to determine your clinical inebriation quotient. Next, this is Steve, my paralegal. He will be administering your oath of acquescience, and giving his Notary Seal."
Yeah. That'll get you laid.
- Mike, Detroit, Michigan, US
Personally, I believe a lawyer should be present at all times. Better still two lawyers to advise each party before and during the act.
- Gaz, Kensington, London
Except in cases in which their drinks have been spiked, I think women need to take responsibility for their own alcohol intake. Alcohol decreases inhibitions and increases women's sexual appetites, making it more likely that they will agree to intercourse that they might not have consented to when sober. Making bad decisions such as this whilst under the influence is not somebody else's responsibility, just as choosing to drive a car when over the limit is not the responsibility of passengers in the car.
- Sez, London
An Appeal Court judge talking common sense - what is this country coming to ?
- Alan, Eastcote, Middx
I like the consent form idea. The government can jail every man and woman who fails to get a consent form signed before sex.
That would be logical from their view point.
- Peter Wee, Badrics Island, UK
Well, if every bedroom had CCTV, these difficult rape cases could be avoided.
- Adam T. Spencer, London
The only way we are going to stop men being falsely accused, or guilty men going free, or women crying false rape is to ensure that before intercourse has taken place both parties sign a consent form.
- Brian, London, UK
