'A Drunken Consent is Still Consent' - Or is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree

Journal of Criminal Law, Vol. 73, No. 4, p. 582, 2009

Oxford Legal Studies Research Paper No. 23/2009

Posted: 26 Jun 2009

See all articles by Shlomit Wallerstein

Shlomit Wallerstein

University of Oxford - Faculty of Law

Date Written: June 25, 2009

Abstract

Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that ‘a drunken consent is still (valid) consent’, though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, yet this article argues that it has not gone far enough, and that s. 74 of the Sexual Offences Act 2003 which governs these scenarios allows - and even requires - a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the current case law and its interpretation of s. 74 for not being restrictive enough, by examining two possible theoretical rationales, mentioned in the judgments. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticised on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticised for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restrictive position, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the provision of better guidance to juries, but failing that a reform of the law might be needed.

Keywords: Sexual offences, consent, capacity, intoxication/drunkenness, rape

Suggested Citation

Wallerstein, Shlomit, 'A Drunken Consent is Still Consent' - Or is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree (June 25, 2009). Journal of Criminal Law, Vol. 73, No. 4, p. 582, 2009, Oxford Legal Studies Research Paper No. 23/2009, Available at SSRN: https://ssrn.com/abstract=1425443

Shlomit Wallerstein (Contact Author)

University of Oxford - Faculty of Law ( email )

New Inn Hall St.
Oxford OX1 2DL, Oxfordshire
Great Britain
01865-278955 (Phone)

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