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January 24, 2007

Drunkeness and Rape

As Matthew Syed points out, I was drunk so I couldn't have given consent doesn't really work as a piece of law.

I was drunk so I didn't consent to start driving? I was incapable of making the decision to drive?

Doesn't really work, does it?

January 24, 2007 in Law | Permalink

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Comments

You're despicable. Driving while drunk is a wrongful action, and using drunkenness as a defence is completely different from a woman being unable to consent to what is for her a lawful act in any event, but one she would not want to make.

Posted by: Marcin | Jan 24, 2007 9:31:51 AM

If too drunk to give consent, then too drunk to deny consent? This sort of tangle is presumably a consequence of deeply dishonest behaviour by the Government. Surprise!

Posted by: dearieme | Jan 24, 2007 10:07:47 AM

This isn't a great analogy because it's not just about intent; you're trying to compare an active event with a passive one. A drunk driver, no matter how many sheets to the wind, has to be physically capable of driving in order to commit the offence. A woman who has been raped because she was too drunk to fight off her attacker hasn't made the wrong decision, she's made no decision.

I do agree though that you can't later withdraw consent that has been given, pleading drunkenness.

Posted by: Matty | Jan 24, 2007 11:00:52 AM

There is no need to prove intent-it is a strict liability offence.

Posted by: james c | Jan 24, 2007 11:47:18 AM

If we get drunk, we are responsible for getting drunk.

If we are responsible for getting drunk, then (a) we have responsibility for what we do when drunk, and (b) we have some responsibilty through contributory negligence for what happens to us when drunk.

If women do not wish to be raped or to have sex when drunk that they might subsequently regret, they shouldn't get drunk.

Posted by: paul ilc | Jan 24, 2007 11:50:03 AM

...using drunkenness as a defence is completely different from a woman being unable to consent to what is for her a lawful act in any event, but one she would not want to make.

But what if the man in this situation has had a few too many as well, and wouldn't have consented to sex with the woman if not for the alcohol..? Or doesn't it work both ways?

And if not, why not...?

Posted by: JuliaM | Jan 24, 2007 12:48:49 PM

"...A drunk driver, no matter how many sheets to the wind, has to be physically capable of driving in order to commit the offence."

No, he has to be physically capable of starting the car....

I'm sure plenty of policemen will attest to having scraped drivers up off the road or out of trees because that is as far as they can get...

"...A woman who has been raped because she was too drunk to fight off her attacker hasn't made the wrong decision, she's made no decision."

So the decision to pour 16 Bacardi Breezers down her neck wasn't a decision at all...?

Posted by: JuliaM | Jan 24, 2007 12:52:02 PM

No, he has to be physically capable of starting the car.... - Driving the car, starting the car, whatever; that's just nitpicking.

So the decision to pour 16 Bacardi Breezers down her neck wasn't a decision at all...? - No, I didn't say that. It's not a good idea to drink 16 Bacardi Breezers. In my case, it wasn't a good idea to drink eight pints then try to find a taxi alone in a deserted central London street; unsurprisingly I got mugged. I take responsibility for putting myself in a risky situation. Who is responsible for the mugging? It ain't me.

What if I decide to walk through a notoriously bad neighbourhood sober and get stabbed? Am I responsible for the stabbing? What if I get done for credit card fraud and sodomised in the prison showers?

I'm not arguing against personal responsibility but I do think it's dangerous to shift responsibility away from the direct perpetrators of crime, otherwise we're straying into 'she was asking for it she was wearing a mini-skirt, m'lud' territory.

Posted by: Matty | Jan 24, 2007 1:21:01 PM

"I take responsibility for putting myself in a risky situation."

Good for you, how honest. And yes, you are not responsible for the actual act of mugging. So why cannot these women do the same....?

Posted by: JuliaM | Jan 24, 2007 1:34:20 PM

And what about the first example I raised..? Where both parties are drunk?

Why should it only be the woman able to cry 'rape' and get her own way...?

Posted by: JuliaM | Jan 24, 2007 1:35:43 PM

"A woman who has been raped because she was too drunk to fight off her attacker hasn't made the wrong decision, she's made no decision."

I'm fairly sure we're only talking about situations in which drunken consentual sex becomes non-consentual come morning when the woman wakes up with a WKD hangover and the horrifying realisation that she slept with some scrote - rather than a situation in which she was sexually assaulted because she was too drunk to remember how to get someone in a choke hold.

The idea that a woman can decide she has been raped after drunkely consenting to sex fills me with horror. My older brother was accused of rape a few years ago - something that surely would have destroyed the possibility of his becoming a teacher (as was his ambition). It was only after 10 or so witnesses attested to the fact that the young lady in question had dragged him to her bedroom that she decided to drop the matter.

But what if there had been no witnesses? What if she'd pressed charges, broken down in tears in the witness box and wept as she recounted how my evil, violent rapist of a brother had violated her while she was semi-conscious and clearly intoxicated? Where would he be now, and what hope would he have of a normal life simply because some bint didn't realise that alcohol reduces inhibitions?

God, I hate people.


Posted by: sortapundit | Jan 24, 2007 1:37:15 PM

And what about the first example I raised..? Where both parties are drunk? - I think the answer to that is entirely physiological!

Posted by: Matty | Jan 24, 2007 2:04:15 PM

I think the answer to that is entirely physiological!

It's entirely possible to achieve an erection without being in the least sexually aroused - any man who has ever sat on a bouncing bus may have first hand knowledge of that fact.

Posted by: sortapundit | Jan 24, 2007 2:16:14 PM

I'm fairly sure we're only talking about situations in which drunken consentual sex becomes non-consentual come morning when the woman wakes up with a WKD hangover and the horrifying realisation that she slept with some scrote - rather than a situation in which she was sexually assaulted because she was too drunk to remember how to get someone in a choke hold.

I think we are and that is the problem. Changing your mind afterwards should never be allowed, but I am sure that we all agree that sew with a comatose woman would be de facto rape.

JuliaM

I am sure we have all suffered that fate.

Posted by: Serf | Jan 24, 2007 2:19:13 PM

There are two alarming pieces of recent research relating to British drinking habits:

"LONDON (Reuters) - Highly educated British women are more likely to binge drink in their 20s but curb the habit by the time they reach 40, researchers said on Thursday.

"But the reverse is true for women with fewer qualifications who make up the bulk of female binge drinkers in middle-age, scientists at the Institute of Child Health found."
http://www.sciam.com/article.cfm?chanID=sa003&articleID=2DC8BD91D566CAC1ABC88917CA71E1EE

If that isn't bad enough:

[Hazel Blears, chairman of the Labour Party] "claims that Britons — unlike our European neighbours — are incapable of leaving a bar after one drink because we like being inebriated."
http://www.timesonline.co.uk/article/0,,2087-2524407,00.html

Evidently:

"The British are Western Europe's biggest binge drinkers, a new study has revealed. According to market analysts Datamonitor, drinkers in Britain consume 6.3 units of alcohol - equivalent of 2.2 pints of lager - each time they visit the pub."
http://www.999today.com/health/news/story/3014.html

From these two further pieces of Home Office sponsored research, it seems that women rape victims tend (unsurprisingly) to be young and they also tend to know or be acquainted with their attacker - stranger rape is highly unusual:
www.homeoffice.gov.uk/rds/pdfs2/r159.pdf
www.homeoffice.gov.uk/rds/pdfs05/r247.pdf

With that background, is the appallingly low conviction rate for rape altogether surprising?

"An analysis of Home Office figures reveals that only 9.7 per cent of all 'serious woundings', including stabbings, that are reported to the police result in a conviction. For robberies the figure falls to 8.9 per cent and for rape, it is 5.5 per cent."
http://observer.guardian.co.uk/uk_news/story/0,,1784623,00.html

Posted by: Bob B | Jan 24, 2007 2:21:35 PM

The argument isn't, as Marcin suggests, about a woman being unable to consent to what is for her a lawful act in any event, but one she would not want to make ; if she's incapable of consenting because she's passed out, that's rape. Ditto A woman who has been raped because she was too drunk to fight off her attacker.

As Sortapundit says, the proposal is about whether consent is valid when someone's had too much to drink and consents to something she regrets the following morning. This raises all sorts of problems, notably what you do about drunken intent in other circumstances.

The courts are kept pretty busy by people who've formed an intent to commit criminal damage, GBH and the like precisely because they've had too much to drink. They quite genuinely regret it the following morning, and sometimes can't even remember having done it, but that's no sort of defence unless they can persuade a jury they were so intoxicated (usually with a combination of drink and drugs) that they were completely unaware at the time of what they were doing. And it seems completely bonkers to try to argue a woman can drunkenly intend to hit her best friend (even though she regrets it the next morning) but not then to go on to have sex with the best friend's boyfriend (though he regrets that, too).

The background to this, let's recall, is that chap who helped a very drunk student back to her room in the room in the halls of residence, where they had sex. She complained of rape, and his defence was consent.

When the matter came to trial, her evidence wasn't that she was too drunk to be able to consent, nor was it that she was too drunk to fight him off. It was that she couldn't remember what happened.

Consequently, there was no actual evidence to confute the defendant's version of events, and the prosecution had to withdraw the case, since their job was to make the jury sure either she'd not consented or he was reckless as to whether she consented or not. Since she wasn't sure what happened, the jury couldn't be, either.

His behaviour, on his own account, was certainly despicable, but the only way to make it rape would be -- as in this present proposal -- to change the law so the prosecution could say, in effect, 'Even though we can't challenge the defence's suggestion (possibly even evidence) that she consented to sex, or even initiated it, she was clearly so drunk that she couldn't have intended to, even if she drunkenly thought she did at the time'.

As I say, the guy's behaviour was appalling, however you look at it, but hard cases make bad law, and this seems a case in point.

Posted by: Not Saussure | Jan 24, 2007 2:37:49 PM

News update:

"Three out of four young women do not believe they are at risk of getting HIV, according to a new survey.

"Research commissioned by The Body Shop and MTV found that 70% do not think they are at risk of the sexually-transmitted disease, which can lead to Aids.

"Nine out of 10 (92%) do not think a condom is an essential handbag item on a night out, with 66% believing it would jinx their chances of getting sex in the first place."
http://www.guardian.co.uk/uklatest/story/0,,-6366944,00.html

"Britain has the highest rate of pregnancy in Europe for under-18s which peaked at 41,089 in 1998. Meanwhile, cases of the sexually transmitted infection chlamydia, which can wreck fertility, have tripled in a decade."
http://www.thisislondon.co.uk/news/article-23382403-details/Health%20experts%20condemn%20plans%20to%20set%20up%20sexual%20health%20clinics%20in%20schools/article.do

Comment seems unnecessary.

Posted by: Bob B | Jan 24, 2007 2:50:03 PM

Here's an alternative scenario to all the "doing bad things when drunk" comparisons - if a person who was drunk went to a doctor and said "doctor, perform this operation on me please", and the doctor did so - would that request be considered to be adeqaute consent to prevent the doctor from being done for assault? What about if the doctor went up to the drunk person and said "may I perform this operation on you please?" and the drunk person said yes, would that be considered consent?

Comparisons with active wrong doing when drunk - drunk driving, assault etc - are entirely erroneous.

Posted by: Katherine | Jan 24, 2007 3:07:51 PM

The argument isn't... about a woman being unable to consent... Ditto A woman who has been raped because she was too drunk to fight off her attacker. - You're right, and I said exactly that in my first post. I was just a little uncomfortable with the drink driving analogy because in many rape cases, as you say, the facts of who consented to what are essentially unknowable. The drunk driver, regretful - and even forgetful - as he may be, cannot plead that he was too drunk to have driven. On the other hand it is entirely plausible, though clearly not always the case, that a woman was too drunk to give consent.

I'm concerned about the way this debate is framed because, as paul ilc proves (If women do not wish to be raped or to have sex when drunk that they might subsequently regret, they shouldn't get drunk.), it quickly slips from a debate about them limits of personal responsibility into one about deserving and undeserving victims. Like Good AIDS and Bad AIDS I suppose.

Posted by: Matty | Jan 24, 2007 3:13:37 PM

"I'm concerned about the way this debate is framed because...it quickly slips from a debate about them limits of personal responsibility into one about deserving and undeserving victims."

Are you saying that there is no such thing as a deserving victim?

Posted by: JuliaM | Jan 24, 2007 5:19:11 PM

What, legally or morally?

Posted by: Matty | Jan 24, 2007 5:40:03 PM

Katherine asks, What about if the doctor went up to the drunk person and said "may I perform this operation on you please?" and the drunk person said yes, would that be considered consent?

Slightly different, in that performing an operation on someone is a somewhat more highly regulated procedure than having sex (you don't need several years training and membership of a professional body to do the latter, for instance). But, yes, if the patient's brought into hospital drunk and asks for his wounds to be stitched they don't normally wait until he sobers up to ask him if he really means it -- and it's certainly an assault to stick needles in people without their consent.

I assume if he requires emergency surgery they'll take his drunken consent if none other is available, though I'd have thought they'd normally want to wait, if possible, till he sobers up because of the problems his condition might cause the anaesthetist.

Julia M -- I don't think 'deserving victims' are known to English law. They're certainly alien concepts in the law on rape or sexual assault and their very mention tends to make judges very irate indeed with any defence counsel rash enough to hint at such a thing.

Posted by: Not Saussure | Jan 24, 2007 5:59:00 PM

I often think that these cases can be put into sharper relief by ignoring the issues about women in society and concentrating on that small minority of rapes of men by men.

So, say that Tim goes off on a rugby tour, gets drunk with the lads gets blind, steaming, passing out drunk and wakes up to find that he has been buggered. It has certainly happened. There weren't any witnesses, but everyone saw a burly prop forward with his arm round Tim, leading him staggering off toward some bushes.

On questioning, the prop forward says that he too was surprised to find a blind drunk Tim saying that he wanted eight inches of cock up him, but that consent is consent and he, the burly one, wasn't in the mood to pass up a free slice of arse.

Tim protests that this sounds very unlike him, what with him not being gay and all, he was utterly blind drunk and he doesn't even actually remember saying that he wanted any cock at all, let alone eight inches. But the prop forward says that this is just buyer's remorse.

Are we really confident that no crime at all has been committed here, and that when this sort of thing goes on, it's not even in principle the sort of thing that the courts should take an interest in?

Tim adds: Well, apart from my prediliction being for hookers (ho ho) there's something of a difference in your scenario. The proposed change in the law is that even if I were gay, with a predeliction for prop forwards and their eight inches, my having been blind drunk would be proof, in and of itself, that a crime had been committed because I could not possibly have given my consent.

If we do not change the law in that manner, then, yes, the scenario you have devised is indeed one that the courts should take an interest in. Just as it should if it were not man on man. The verdict being delivered by a jury on their view of the evidence.

Posted by: dsquared | Jan 24, 2007 6:02:02 PM

"..their very mention tends to make judges very irate indeed..."

Goodness, we certainly wouldn't want that...

(sarcasm tags off)

"Are we really confident that no crime at all has been committed here..."

Well, perhaps your imaginary rugby prop is also three or four sheets to the wind & strongly believes that Tim consented? What then..?

These cases always come down to that, in the end. Reasonable doubt.

So why should the law be changed to secure a 'better' (mostly better only in the eyes of feminists) conviction rate in these borderline cases?

Posted by: JuliaM | Jan 24, 2007 6:35:24 PM

Tim, you're normally a clever chap, so your making such a stupid analogy suggests to me that you were distracted by some strong view on the subject, perhaps a belief that taking sexual advantage of drunken women is fair do's, and that the law has no business interfering. Say it ain't so, please.

Also, it's "drunkenness". Drunkeness is a town in Kent.

Tim adds: Taking sexual advantage of drunken women fair do's? No, I don't believe that. But I do have serious doubts that we can have a law that states that at some level of drunken"n"ess a woman is incapable of consenting. Well, even that's not true. Someone who is passed out cannot consent, I agree. But someone who is walking and talking we gernally assume is indeed capable of consent in other matters, so why not this?

Posted by: Gdr | Jan 25, 2007 12:30:31 AM