Fresher’s Week – what consent is and why drunkenness is not a defence
Last week, the first episodes of a new hard-hitting plot aired, which is centred on the rape of Ruby Allen (played by Louisa Lytton) after a night in the local nightclub with her friends. The focus of the storyline appears to challenge the stereotyping and myths that can surround allegations of sexual assault and consent. It comes at a time when there is a real cultural shift in terms of discussing sexual assaults and perceptions of consent and highlights clearly just how complex and challenging it can be to prove allegations of sexual misconduct.
The story begins with a scene of Ruby Allen enjoying a boozy reunion at a night club with her close friend Stacey. Stacey’s husband Martin is also at the club with his former school friends - Ross and Matt. Ruby is dressed in a bright skimpy dress with her hair done and wearing heavy make-up. She is clearly flirting with the boys and admits to Stacey she thinks one of them ‘is fit.’ She is laughing and smiling. She appears to appreciate the male attention she is getting and it is clear she is having a good time.
Stacey and Martin leave her alone with Ross and Matt and, as they turn to check she is okay before going home, they see her kissing Ross on the dance floor.
In the following episode, Ruby is seen in a confused state wandering around Walford wearing the same dress as the previous night. Judgemental looks and comments come in thick and fast and she is called a ‘dirty stop out’ and ‘man eater’ before she even had the chance to open her mouth.
When Ruby takes her close friend Stacey through the events of the night before, she ashamedly recounts how she ended up having sex with Ross because she ‘felt she owed it to him’ before she then passed out and woke to find Matt on top of her. She blames herself for leading the boys on and feels humiliated by her own behaviour.
When Stacey tells Ruby that this is rape, the enormity of what has happened to her becomes clear.
‘Rape’ is defined in section 1 of the Sexual Offences Act 2003 (‘the Act’), and is committed when a person (A) with a penis intentionally penetrates the vagina, anus or mouth or another person (B) and that B does not consent to the penetration.
‘Consent’ is defined in s74 of the Act, which says that a person consents if they agree by choice and has the freedom and capacity to make that choice. We recently explored the issue of consent in our blog here, which also examines the relationship between alcohol/drug intoxication and consent.
However, it is a defence to allegations of rape if A can prove that they ‘reasonably believed’ that consent was given and this is determined having regards to all the circumstances, including any steps A is taken to ascertain whether B consented. The courts will look at the evidence surrounding the incident and also the relationship between A and B.
Section 75 of the Act provides a list of circumstances in which it is presumed that a person did not consent. The list includes where the victim was asleep or unconscious and also, where the victim had been given a substance without their consent that was capable of causing them to be overpowered at the time the alleged rape took place, for example when a victim’s drink is spiked.
The EastEnders storyline centres round an unseen rape and depicts an all too familiar ‘one person’s word against another’s’ account of what happened after a night of heavy drinking.
Ruby has two very different sexual encounters within a very short period of time, neither of which any of the parties deny happening. However, the issue in question is whether Ruby consented to the encounters or whether Ross and/or Matt had a reasonable belief in her consent at the time.
‘Consent’ remains an evidentially problematic concept in allegations of rape, where there is rarely any independent account of what has happened.
Incident 1 - Ross
Ruby does not deny that she had sex with Ross; she admitted she fancied him earlier at the club and had been flirting with him on the night in question. She had agreed to go back with them after party to carry on drinking with all of the boys and later confessed to Stacey that she liked all the male attention she was getting. She asked herself ‘was I wrong to flirt with them to make them think they had a chance?’
By the time Ross made the first sexual advance, she felt that she ‘owed him sex’ and ‘weird for being in a house full of strangers.’ By Ruby’s account, she walked into Ross’ bedroom by accident and he was already undressing himself before she had the chance to say anything. She tries to explain to Stacey that although she had fancied Ross in the club, she wasn’t sure at this point.
This raises the question whether Ruby had the freedom to consent, given the situation she found herself in. Also, whether her capacity to consent was impaired because she had consumed so much alcohol.
On the other hand, Ross says he found Ruby in his bedroom and she started kissing him. Based on her pervious flirty behaviour and provocative dancing in the club, he believed she wanted to have sex with him. Ruby says herself that she did not give any verbal or physical signals that she wanted him to stop and that she allowed it to happen.
Ross reasons ‘if she didn’t like it she would have said stop right?’moments before he then boasted about offering Ruby to his mate Matt to ‘share the love’.
Incident 2 – Matt
The second sexual encounter, in which Ruby woke up with Matt having sex with her and she initially mistook him for Ross, is clearer cut. She was not even given the opportunity to consent. Matt could not reasonably believe that someone who is unconscious, whether this is through alcohol consumption or not, could conceivably consent to sex. Ruby said she could not move and did not do anything, she just lay there.
The boys recount that Ruby was ‘all over [Matt] like a rash’ when they first arrived at the flat. They said he made her a cup of tea and that Ruby had said that Matt was her type. Ross, and the other boys, clearly did not see any issue in Matt having sex with Ruby after he was done with her as, in their eyes, her behaviour earlier in the evening meant she must have consented.
In the conversations shown between the group of men the next morning, they nonchalantly discuss how Ruby was ‘up for it’ and that she would be giving the boys ‘five star reviews’. Ross even declares ‘I am a card carrying feminist; I like a woman that knows what she wants.’
The boasts of their joint conquest make it clear that, from their perspective, they do not think that they did anything wrong.
The scene also shows them discussing how hard it can be for men to read the signals and because they are expected to make the first move, it can be difficult to know how to ‘play it.’
It is actually a fairly accurate portrayal of a ‘debrief’ discussion between a group of males after a night out. However, their jovial and playful recounting of the events is in stark contrast to the emotional and traumatic scenes where Ruby tries to explain her ordeal to her friend.
However uncomfortable this can be to watch, it does raise an important point that two people can have very different accounts of the one event. While it would be much easier for everyone if both parties said an unequivocal ‘yes’ or ‘no’, that is not the reality of a what happens always when people have sex.
When determining whether consent was given, the law will look at the steps A took to ascertain whether B consented. Where there are verbal and physical cues, this can be relied upon to evidence consent or a reasonable belief in consent but these are not always conclusive. Whether someone consents to the exact act that is happening at that exact time can be very hard for a third party to judge.
In the absence of independent evidence in rape cases, judgments about the credibility and reliability of the complainant’s and accused’s conflicting accounts are very difficult to make. Stereotypical and false beliefs about how women signal they consent to sex can lead to people making the incorrect presumption that someone must have consented on the basis of how they dressed, how much they drank or the fact they did not stop the act when it was happening.
After much deliberation, Ruby finally decides to report the incident to the police. She is facing online trolls calling her a ‘slut’ and has to deal with other evidence coming to light about what happened that night.
The storyline will no doubt have many more twists and turns before the matter is over. We welcome it and believe it helps raise important and challenging questions at a time when it has never been more important that we do not shy away from having these difficult conversations.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team in confidence.
You may also be interested in reading some of our other blogs around consent:
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