Fresher’s Week – what consent is and why drunkenness is not a defence

4 October 2018

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. Our memories are of course affected by the #MeToo landscape of today and the lessons learnt from #WhyIDidntReport.

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.

A quick look at the law

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 previous blog 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 a member of our criminal litigation team.

Please also see our other blogs on youth crime and justice for regular updates.

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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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