Intoxication and Consent in Sexual Offences
| Author | Damian Warburton |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| DOI | http://doi.org/10.1350/jcla.2014.78.3.914 |
| Subject Matter | Court of Appeal |
Intoxication and Consent in Sexual Offences
R v Kamki (Gael Tameu) [2013] EWCA Crim 2335
Keywords Sexual Offences Act 2003; Capacity to consent; Intoxication;
Unconsciousness; Evidential presumptions
The appellant accepted engaging in sexual activity with the complainant,
M, on a date in May 2010, and when both parties were very dunk.
Following trial the appellant was convicted of one count each of rape,
assault by penetration, and sexual assault, the matter in issue having been
consent. The appellant appealed against conviction on the basis that the
trial judge did not sum up to the jury adequately the distinction between
whether M was unconscious and therefore lacked the capacity to consent
or was conscious and despite being drunk retained that capacity. Further,
the appellant submitted that his conviction was unsafe because the judge
did not explain that a regret once sober cannot extinguish an earlier
drunken consent if it was validly given, and in particular did not use the
words ‘a drunken consent is still a consent’.
M, in company with her male partner V, her female friend E and E’s
partner, had attended the appellant’s birthday party at which all became
very drunk. Others were present also, but left before the relevant events
occurred. The Crown’s case was that M became so drunk that she needed
assisting to bed by three friends, who did not include the appellant, and
that she was put into the bed that her partner, V, was already asleep in. M’s
evidence was that she had no recollection of this happening, although she
did recall having vomited during the night and having been assisted to get
clean and change clothes by her friend E who had checked on her and
discovered her condition. M stated that she had flashes of memory of
seeing the appellant on top of her in the bed, alongside V, and that in the
morning she discovered white stains on her body and that her underwear
was on the floor.
M does not appear to have testified that intercourse or penetration
took place, but the appellant testified that it did. At trial his case had
been that he retired to bed at 3 am to find M alone and asleep on his bed,
this being in a different room from the one in which M’s partner V was
sleeping where, on M’s account, the events occurred. The appellant
claimed to have concluded that M and V must have had a dispute and that
he tried to establish this with V, who was his close friend. However, on
finding V sleeping, he returned to his room and...
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