Freshers’ Week - #ConsentIs… drunkenness is not a defence

23 September 2015

Anyone who has ever been to university remembers fresher’s week.  The first real taste of freedom, alcohol and sex create a heady combination and the possibility of falling foul of the law regarding rape, sexual offences and other lesser offences.

Recently politicians issued strong statements regarding the so-called “Lad culture on campus” (The Times 8 September).

Business secretary Sajid Javid cites one National Union of Students survey that found that almost two thirds of female students had been assaulted either verbally or physically. The report argues he could just as easily have mentioned another NUS report, from 2010, that showed that one in seven women at university has suffered serious physical or sexual violence.

At this time of year many young students leave home for the first time and head to university. Attending one party after another, often with excessive alcohol intake, meaning problems can arise the “next morning”, as to whether someone did or did not consent to sex.

Indeed, just yesterday the DPP Alison Saunders has launched a social media campaign #ConsentIs encouraging people to talk about what sexual consent means to them. The CPS also released new guidelines earlier this year to explain when alleged rapists can be prosecuted - for example making it clear that acquiescence e.g. staying silent or using contraception does not mean someone has consented.

S74 of the Sexual Offences Act 2003 defines consent in the following way:

“a person consents if he agrees by choice, and has the freedom and capacity to make that choice”

The issue of consent remains an evidentially difficult concept in allegations of rape and sexual assault.  In a significant proportion of cases, the fact that sex or sexual contact took place is not in dispute. The central issue is often whether informed consent, from someone who had the freedom and capacity to consent had been given.

Being so drunk that you:

  • did not think about consent
  • didn’t know what you were doing
  • cannot remember whether consent was given
  • mistakenly believed consent was given

Cannot amount to a defence.

A successful defence requires the accused to show that they had a reasonable belief that consent was given. This “reasonable belief” is determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.  Being too drunk to ask, notice or recall the precise circumstances under which consent was given inevitably leaves you vulnerable.

So what can you do to make sure everyone is safe?

  • Use your words.  Body language can only take you so far.  Have the conversation, find a way to vocalise what you are thinking, feeling and what it is you would like to do
  • Look and listen.  If there is no clear, unequivocal green light - just stop
  • Avoid consuming so much alcohol that you cannot recall what happened and in what sequence

If having read this you are still not sure what consent means in practice find more detail in our other blogs listed below and a short video clip which might save your blushes and reputation.

Further information

For further information on the issues raised in this blog post, please contact Sandra Paul, John Harding or a member of the criminal litigation team.

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On September 24th 2015 Sandra Paul commented:

The relevant time for consent is at the time (and throughout) the sexual act. Regret after sex does not amount to lack of consent. The burden is on the crown (not the him) to prove that there was no consent and that he did not reasonably believe she consented. In practice he would have to explain what was said and done that amounted to consent including details of who did what and in what sequence; how and why he believed that she had consented. There might be other evidence that he can rely on such as CCTV or witness accounts that show how much they both had to drink or what was said between them. A jury will take into account all the circumstances, including his character, in deciding the issue. It is not very romantic but there is an App that can record consent or the absence of consent (What-About-No) but the best kind of defence is based on a clear account not clouded by drink or drugs

On September 23rd 2015 Belinda smith commented:

If two young people enter into a casual relationship, away from home, surely it must be a consensual agreement? If the girl's feelings change after sex and she regrets her behaviour, can she accuse the boy of rape? He will have to prove his innocence- but how can he?

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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