Alcohol-Related Rape Cases: Barristers' Perspectives on the Sexual Offences Act 2003 and its Impact on Practice
| Author | Anna Carline,Clare Gunby,Caryl Beynon |
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| DOI | 10.1350/jcla.2010.74.6.670 |
| Subject Matter | Article |
Alcohol-related Rape Cases:
Barristers’ Perspectives on the
Sexual Offences Act 2003 and Its
Impact on Practice
Clare Gunby,* Anna Carline†and Caryl Beynon‡
Abstract This article discusses the findings of a qualitative study which
interviewed 14 barristers about the law-in-action reality of rape cases
involving alcohol intoxication. The study aimed to identify how a number
of provisions introduced by the Sexual Offences Act 2003 were perceived
by barristers, worked in practice and their overall impact in terms of
improving the law of rape and specifically, alcohol-involved rape. The
article focuses on barristers’ opinions relating to the definition of consent
as contained in s. 74; the ‘consent presumptions’, with specific emphasis
on s. 75(2)(f); the jurors’ perceived response to jury directions and
definitions; and barristers’ opinions on the need for future reforms in this
area. It is argued that certain provisions introduced by the 2003 Act are
not always utilised in a way that was intended, have been interpreted and
applied narrowly and, in a number of instances, fail to assist the jury.
Keywords Rape; Consent; Capacity; Intoxication; Sexual Offences
Act 2003
Over the last 10 years, the offence of rape has become a major social and
political issue within England and Wales. Within the first quarter of
2010 two major studies have been published which explore public
perceptions regarding rape and also the contention that the criminal
justice system is in some way failing to secure justice for those who are
victims of this crime.1Concerns are frequently expressed in relation to
the conviction rate being unduly low, and suggestions with regards to
how the system could be improved are frequently aired.2Of particular
note are issues relating to intoxication and rape, especially cases in
which the complainant was voluntarily and exceptionally intoxicated at
the time of the incident. Research studies indicate that many people are
reluctant to believe a woman who states she was raped when volun-
tarily intoxicated or alternatively hold her in some way blameworthy
* Centre for Public Health, Research Directorate, Liverpool John Moores University;
e-mail: c.gunby@2008.ljmu.ac.uk.
† School of Law, Liverpool John Moores University; e-mail a.carline@ljmu.ac.uk.
‡ Centre for Public Health, Research Directorate, Liverpool John Moores University;
e-mail: c.m.beynon@ljmu.ac.uk.
1 Opinion Matters, Wake Up to Rape Research Summary Report (Opinion Matters:
London, 2010) prepared for the Havens (Sexual Assault Referral Centres); Baroness
Stern, The Stern Review: A Report by Baroness Vivien Stern CBE of an Independent Review
into How Rape Complaints Are Handled by Public Authorities in England and Wales
(Government Equalities Office and the Home Office: London, 2010).
2 See Baroness Stern, ibid.
579The Journal of Criminal Law (2010) 74 JCL 579–600
doi:10.1350/jcla.2010.74.6.670
and are therefore unwilling to convict the accused.3From a strictly legal
perspective, however, the key issue should remain whether the com-
plainant consented to the sexual intercourse.
This article draws upon interviews with barristers in order to generate
knowledge and insights into the law-in-action reality of rape cases
involving intoxication. In particular, the article will analyse barristers’
opinions relating to the definition of consent as contained in s. 74 of the
Sexual Offences Act 2003 (hereafter ‘the 2003 Act’); the ‘consent pre-
sumptions’, with specific emphasis on s. 75(2)(f); and also barristers’
opinions on the need for future reforms in this area. The analysis will
unfold over six sections. The following section will discuss the rationale
behind, and the methodology of, the research project. This will include
a discussion of the key legal issues; an overview of the interview
schedule and a brief demography of the study participants. Discussion of
the study findings will take place over sections 2 to 5 of the article.
Section 2 will focus on the definition of consent as contained in s. 74
with particular emphasis placed on the meaning and interpretation of
‘capacity’. Barristers’ opinions on the relevant ‘consent presumptions’
will be examined in section 3. Section 4 will discuss issues relating to
jury directions and jury behaviour and participants’ perceptions on the
need for future legal reform will be explicated in section 5. In conclu-
sion, the article will argue that the opinions of those who practise the
law on a daily basis clearly indicate that not only have the reforms
introduced by the 2003 Act done little to improve the offence of rape,
but that further reform is considered in the least unnecessary, and at the
most, detrimental. This outcome reinforces the opinions expressed by
Baroness Stern and the suggestion that more needs to be done within
the system to support victims of rape.4
1. The law, the rationale and the methods: exploring
barristers’ opinions on rape and the 2003 consent
provisions
The 2003 Act represented the first major overall reform of sexual
offences in 50 years. As recognised by the 2003 Act, of particular
concern to the offence of rape is the issue of consent, due to its pivotal
role within both the actus reus and mens rea of the crime. Prior to the
2003 Act, consent was not statutorily defined, but was rather governed
by the common law.5The previous Labour government (hereafter ‘the
government’) expressed concerns about this position as well as express-
ing concern more generally with regard to the low conviction rate for
rape, in particular, the fact that it had fallen from 25 per cent in 1985 to
3 See, e.g., Opinion Matters, above n. 1; E. Finch and V. Munro, ‘Juror Stereotypes
and Blame Attribution in Rape Cases Involving Intoxicants: The Finding of a Pilot
Study’ (2005) 45 British Journal of Criminology 25; E. Finch and V. Munro, ‘The
Demon Drink and the Demonized Woman: Socio-Sexual Stereotypes and
Responsibility Attribution in Rape Trials Involving Intoxicants’ (2007) 16(4) Social &
Legal Studies 591.
4 See Baroness Stern, above n. 1.
5 See especially R vOlugboja [1981] 3 WLR 585.
The Journal of Criminal Law
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