Being too drunk to remember is not consent in rape case
- February 13, 2015
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“It is not a crime to drink,” she has said, “but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink.”
The above quote comes from Director of Public Prosecutions, Alison Saunders, in relation to concerns about the treatment received by victims of rape and sexual assault who were voluntarily incapacitated through either drink or drugs at the time of the assault.
The recent case involving three men who were jailed for the rape of a woman who was, by her own admission, so drunk she does not remember what happened, will set a precedent for a victims capacity to give sexual consent.
The victim had drunk up to 12 shots of vodka before taking a taxi with the men, of who she no prior knowledge, back to their flat for further drinking. She was then assaulted by the three men.
In the initial trial held in Lincoln when asked during cross-examination about whether she could remember anything, the woman told the court: “Yes, it could all have happened consensually and I don’t remember it”.
Based upon this the judge halted the trial on the grounds that there was insufficient evidence that consent had not been given.
This was challenged by the prosecution and the later three court of appeal judges agreed and the judge’s decision was overruled and ordered that the jury continue to hear the case.
Evidence in the form of video footage on a seized mobile phone showed the woman to be barely conscious during a sexual act with one of the defendants.
“It appears to us that [the victim] is depicted throughout as being sufficiently inert and unresponsive as to leave it open to a properly directed jury to be sure that she was not consenting and that she did not have the freedom and capacity to do so,” the appeal court said. “Issues of consent and capacity to consent should normally be left to a jury to determine.”
Lawrence English, CPS East Midlands’ senior district crown prosecutor, said: “This was rape as it was clear the woman was in no state to consent to sex. While it is, of course, true that lack of memory, on its own, does not prove lack of consent, the context in this case showed that this victim was taken advantage of because she was incapacitated, and that she could not have consented to sexual activity.
“It is against the law to engage in sexual activity with someone who is clearly unable, through drink, to give their consent. We are pleased that the court of appeal ruled in the way it did and the case proceeded to the jury for a verdict. The victim in this case has shown tremendous courage. She suffered a horrific ordeal because of the actions of these three men and we are satisfied to see justice has been served.”
This is a step forward in the criminalisation of those who seek to take advantage of a person who is unable to give consent due to incapacity.