‘A Drunken Consent is Still Consent’—Or is it? A Critical Analysis of the Law on a Drunken Consent to Sex following Bree
| Author | Shlomit Wallerstein |
| DOI | 10.1350/jcla.2009.73.4.582 |
| Published date | 01 August 2009 |
| Date | 01 August 2009 |
| Subject Matter | Article |
‘A drunken consent is still
consent’—or Is It? A Critical
Analysis of the Law on a
Drunken Consent to Sex
Following Bree
Shlomit Wallerstein*
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 auton-
omy, 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
Is a drunken consent to sexual intercourse still consent in English law?
This is the question at the centre of this article. Intoxication-related
rapes where some sort of consent to sexual intercourse is given include
three types of cases: involuntary intoxication cases, in which the victim’s
drink was spiked with alcohol without her knowledge; voluntary in-
toxication cases in which the offender has actively encouraged the
* University Lecturer, Faculty of Law, Oxford University, Fellow and Tutor in Law, St.
Peter’s College, Oxford; e-mail: shlomit.wallerstein@spc.ox.ac.uk. I wish to thank
Nick Barber, Alan Bogg, Jonathan Herring, Michelle Madden-Dempsey and Rebecca
Williams for their thoughtful comments. All mistakes are, of course, mine alone.
Throughout this article I refer to women as the complainant or the victim for
the sake of convenience, but the argument is similarly applicable to complainants
and victims of both genders.
318 The Journal of Criminal Law (2009) 73 JCL 318–344
doi:1350/jcla.2009.73.4.582
victim to reach an advanced state of drunkenness in the hope that this
will facilitate sexual intercourse; and voluntary intoxication cases in
which the offender makes no contribution to the victim’s state of
drunkenness, but takes advantage of her condition to engage in sexual
intercourse in the knowledge that there is a likelihood that she would
not behave in such a manner if she were sober.1The discussion below
concentrates on the third category whereby consent to sex is given in
circumstances of voluntary intoxication. Consent given in these circum-
stances is governed by the general definition of ‘consent’ set out in s. 74
of the Sexual Offences Act 2003, and in order to answer the question
posed at the outset, this article will engage in the interpretation of this
section.
Section 1 below sets the legal framework for the discussion pointing
to an important distinction between factual and legal consent and to the
language of the relevant sections arguing that they set the conditions for
legal rather than factual consent. The current position of the law as
developed in the cases of Dougal,2Bree3and H4is then presented. Section
2 criticises the current law and its interpretation of s. 74 for being too
restrictive, by examining two possible theoretical rationales, mentioned
in the judgments, for the court’s proposition that ‘a drunken consent is
still consent’: the first is an analogy with the law relating to intoxicated
offenders, and the second is the general argument that this position
recognises the positive aspect of sexual autonomy. It is argued that the
first rationale is unsound because of the existence of some important
differences between the consent given by the victim and the intention of
the offender. Discussing the second rationale, the arguments that relate
to the existence of valid consent as a matter of normative fact and
arguments that involve public policy considerations are distinguished. It
is submitted that questions of the first type should be discussed first, as
they are questions of facts. Once the drunken person’s incapacity to
consent is established as normative fact, Section 2 goes on to examine
whether considerations of public policy can override these facts. It is
concluded that they cannot. From the criticisms discussed, an alternat-
ive position emerges: a much lower level of intoxication (than that
required by the courts) negates capacity to consent, and that this should
be reflected by a default position that ‘a drunken consent is not consent’.
Subsequently, a two-step process is set out for the jury: (1) was the
victim drunk so as to make her incapable of giving a valid consent; and,
if so, (2) was there pre-intoxication consent? If the answer for both
questions is in the negative, then it must be concluded that no (valid)
consent to sex has been given. This, it is argued, is in line with, and
required by, the current law. Section 3 below argues that the need for
consistent interpretation of the idea of ‘consent’ across criminal law
1 See E. Finch and V. Monro, ‘Intoxicated Consent and the Boundaries of Drug
Assisted Rape’ [2003] Crim LR 773, 782–3; cf. N. Dixon, ‘Alcohol and Rape’ (2001)
15 Public Affairs Quarterly 341.
2R vDougal, unreported, November 2005, Swansea Crown Court.
3R vBree [2007] EWCA Crim 804, [2007] 2 Cr App R 13.
4R vH[2007] EWCA Crim 2056.
A Critical Analysis of the Law on a Drunken Consent to Sex
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