Sober Regrets and Shared Risk Taking: Navigating Intoxicated Consent and Rape in the Courtroom
| Author | Amanda Clough |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| DOI | http://doi.org/10.1177/0022018318801685 |
| Subject Matter | Articles |
Article
Sober Regrets and Shared
Risk Taking: Navigating
Intoxicated Consent
and Rape in the Courtroom
Amanda Clough
Liverpool John Moores University, UK
Abstract
The difficulty with accusations of rape when a victim is voluntarily intoxicated has long pre-
vailed in the courtroom. How and where to draw the line of being legally capable to consent
has been debated in several cases and by many academics. This article will discuss this dilemma
and how it may be solved.
Keywords
Rape, intoxication, consent, voluntary
Introduction
How do we protect the sexual autonomy of an intoxicated person? Alternatively, perhaps a more
pressing question is whether we need to protect intoxicated people from their own decisions. When it
comes to intoxication and rape, the law seems to mostly be concerned with protecting victims from
decisions others have made for them, essentially removing their freedom and capacity to choose who,
when, where and how to have sexual relations. Somehow, the criminal law has to navigate a way to
respect an individual’s right to seek out such relations, while also upholding their right to refuse.
1
It is
with this giving or withholding of consent that we exercise our autonomy and navigate our lives.
2
As
Wallerstein has pointed out:
(positive) sexual autonomy is valu able only insofar as it allows a capa ble individual to make valuable
decisions as to her sexual activity.
3
Corresponding author:
Amanda Clough, Liverpool John Moores University, Liverpool L3 5UA, UK.
E-mail: a.clough@ljmu.ac.uk
1. C. Elliott and C. De Than, ‘The Case for a Rational Reconstruction of Consent in Criminal Law’ (2007) 70 Modern Law Review
225 at 231.
2. H. M. Malm, ‘The Ontological Status of Consent and its Implications for the Law on Rape’ (1996) 2 Legal Theory 147 at 151.
3. S. Wallerstein, ‘A Drunken Consent is Still Consent—Or is it? A Critical Analysis of the Law on a Drunken Consent to Sex
Following Bree’ (2009) 73(4) Journal of Criminal Law 318–44 at 335.
The Journal of Criminal Law
2018, Vol. 82(6) 482–495
ªThe Author(s) 2018
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DOI: 10.1177/0022018318801685
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