Rape, Consent and Intoxication: A Legal Practitioner’s Perspective

  1. Joe Stone QC*
  1. Doughty Street Chambers, 53-54 Doughty Street, London, UK
  1. *Corresponding author: Doughty Street Chambers, 53-54 Doughty Street, London WC1N 2LS, UK; Tel.: +44-020-7404-1313; Fax: +44-020-7269-1272; E-mail: j.stone{at}doughtystreet.co.uk

A common theme of rape trials between two adults is the issue of consent. The prosecution will seek to prove that there was no consent given by the complainant at the time of the alleged offence. The defence will seek to show that there was or might have been consent at the material time. Consent in itself is a fairly straightforward concept and is defined in English Law Section 74 Sexual Offences Act 2003 as ‘where a person agrees by choice and has the freedom and capacity to make that choice’. If the tribunal of fact (the jury) are sure there was no consent, they will convict the defendant, and if less than sure, they will acquit. The issue of intoxication significantly complicates this issue from both a prosecution/defence perspective and for the jury in reaching a true verdict on the specific facts of the case. It is important, therefore, that both sides should be aware of the inherent problems that are generated when issues of intoxication bear on the issue of consent.

Academic studies have shown that if the female complainant is portrayed as drunk, she is perceived as less credible and the defendant is seen as less likely to be criminally culpable compared with a sober victim (Stormo et al., 1997; Wenger and Bornstein, …