Last week we examined the evidential and conclusive presumptions contained in Guyana’s Sexual Offences Act 2010. At https://oig.cepal.org/sites/default/files/2010_guy_act7.pdf) readers can take a look at the provisions in sections 7 and 8 to become more acquainted with those presumptions.
Today we will look at a controversial subject matter in the arena of sexual offences: consent given while under the influence of drink or drug.
James and Jane went to a bar where Jane had a lot to drink and they later went to James’ apartment where they had sexual intercourse. The next morning, Jane realises that she had sex with James but remembers very little else. She also tells him that she would not have had sex with him if she was not intoxicated. James, on the other hand, agrees that Jane was intoxicated, but insists that Jane was responsive and receptive to his touches, including moaning, and even helped him take off her clothes. He said that these and other reasons convinced him that she was consenting to sex, and he never imagined that she was not. Has James raped Jane in this instance?
Does the answer seem easy? You might be surprised to find that arriving at the answer takes serious consideration. After all, it is not illegal for anyone to drink too much, and it certainly is not illegal for people to engage in sexual activity, including intercourse, when they are intoxicated. In fact, this is quite common. One meta-analysis (Gomez-Nunez, Molla-Esparza, Gandia et al 2023) found that 28%-47% of young adults globally use some intoxicating substance, including alcohol, before or during sex. Due to this reality of human nature, courts are of the view that where an allegation of rape is made following voluntary consumption of alcohol, the question is not: whether the alcohol made either or both less inhibited than if they had been sober; whether either or both regretted the sexual activity they had after they became sober once more; or even whether either or both regretted what had happened and wished it had not. The only relevant question is: did the alleged victim consent? If they indeed consented, that consent cannot be revoked. The problem is determining whether there was consent and or reasonable belief in consent.
In most Commonwealth Caribbean countries, when a person is indicted for a sexual offence, and his trial commences in the High Court, it is the jury which decides, based on the evidence presented to them, whether they think an accused person did the act which constitutes a sexual offence. The jury is the judge of facts, meaning it is the jury which decides whether it believes certain facts took place. The judge makes decisions regarding legal questions or issues. Importantly, particular facts give rise to legal issues or questions, and when this happens, the judge must give directions to the jury to help jurors make a decision. For example, prosecutors may argue that an alleged victim was unconscious and therefore incapable of deciding to, or consenting to sex when an accused person had intercourse with them, while a defence attorney may argue that the alleged victim was conscious, aware, and capable of deciding whether to have sex. In such a situation, a judge may give a direction which sounds something like: if you believe that the alleged victim was unconscious when the accused had sexual intercourse with them, then you must find him guilty of rape, but of you find that the alleged victim was conscious, capable of giving consent, and did in fact give consent, then you must acquit the accused of the offence of rape.
Below, we will examine certain facts which have been presented before courts to show the complexity of the evidence which may be involved in a trial concerning ‘drunken consent’. We will also examine some important rules created by courts to help guide them in deciding these cases.
Drunken consent can still be valid consent
The general rule on whether a person who is drunk can consent to sexual activity is that: if a person voluntarily consumed even substantial quantities of alcohol but nevertheless remained capable of choosing whether to have intercourse, and, while drunk, did in fact decide or agree to have intercourse, that would not be rape.
In R v Bree [2007] 2 All ER 676), an accused and an alleged victim were drinking together, voluntarily consuming a large amount of alcohol. They later went to the alleged victim’s flat. The prosecution told jurors that when they returned to the flat, the alleged victim was “sick” due to how much she had to drink, and vomited until she became unconscious. She said that her next memory was that she was lying on her bed and the accused’s face was between her thighs, with his mouth, tongue, and fingers on her vagina. She also said that he asked her if she had a condom and she said no. She also said that she did not want to have sex, but did not say this to him, and that she knew that she did not want to have sex but did not know how to stop it. She also said that she remembered him penetrating her, and that at some point she turned to avoid penetration, and that though he withdrew briefly, he penetrated her again. The accused, on the other hand, admitted that the alleged victim was sick when they got back to the apartment, but also said that she eventually recovered. He said she seemed keen, responded to his touch by moaning quietly, and rolling on her back and opening her legs. He said that her moans encouraged him, and that she even removed her own pyjamas, after he slipped a finger into her waistband and pulled it down partially. He said that eventually she asked him if he had a condom, to which he said no, and then he asked her if she had a condom, to which she responded no. He said that neither of them wanted to risk pregnancy, so he climbed off her, and that was the end of their intercourse. He said that her conduct suggested that she was consenting, and that he reasonably believed that she was consenting. The prosecution’s case was that despite her intoxication, the alleged victim had the capacity to consent, but that she did not. At trial, the jury convicted the accused of rape, and the accused appealed.
It was the Court of Appeal which said ‘if, by drinking or for any other reason, a person has temporarily lost the capacity to choose whether to have intercourse, she is not consenting, and, subject to certain questions about the alleged victim’s state of mind, if sexual intercourse takes place in these circumstances, this is rape.’ The court went on to state, however, that ‘if the alleged victim has voluntarily consumed even substantial amounts of alcohol, but remains capable of choosing whether to have intercourse, and then does agree to have intercourse, this would not be rape.’ These rules are important. On the one hand, a person who has, for whatever reason, lost the capacity to choose to have intercourse cannot consent. Such cases may include where a person has blacked out, or is so impaired from alcohol that it can be said that they are incapable of perceiving what is happening to or around them. On the other hand, if, while intoxicated, a person is aware of initiated sexual activity, agrees to engage in it by consenting, even if they would not have done so if they were not intoxicated, sexual intercourse in these circumstances would not be rape.
This said, human nature, and human interaction are quite complex, and may make it difficult to navigate these cases. Realising this, the court said that capacity to consent may evaporate well before an alleged victim becomes unconscious, and whether an intoxicated person lacks the ability to choose to have sex depends on the actual state of mind at time in question. The court also pointed out that it would be unrealistic to create some kind of grid system to define how intoxicated is too intoxicated for the purpose of determining one’s capability to agree to sex since everyone’s tolerance is different, and even tolerance may be different from day to day, as well as other variables.
In another case R v Lang (1976) 62 Cr App R 50, the court said that in cases of whether ‘drunken consent’ is valid, the question is whether the alleged victim understood her situation and was capable of making up her mind. The court in this case even suggested that the critical question is not even how she came to take the drink, suggesting that involuntary intoxication would be irrelevant if, despite that intoxication, the alleged victim was capable of consenting and did consent. Now, this latter view seems problematic, and is exactly what the evidential presumption at section 7 (2) (d) of Guyana’s the Sexual Offences Act seeks to combat, although it may be argued that even this presumption may be insufficient if the alleged victim is not stupefied or overpowered, but remains capable of consenting, and does consent.
By now, it should be clear that persons who, though being drunk or intoxicated, remain capable of agreeing to sexual activity and do in fact agree to such activity under the influence may not be able to rely on their intoxication to say: but for the intoxication I would not have consented. It should also be clear that there is clearly a point beyond which an intoxicated person is clearly seen as incapable of understanding and consenting to sexual activity.
In DC Pursuer DG and DR [2017] CSOH 5 the alleged victim sued two men for sexually assaulting and raping her after she consumed so much alcohol that she was incapable of consenting to any sexual activity. To summarise the facts, the alleged victim went to a bar with a friend, where they met up with others including the two men, and they all consumed copious amounts of alcohol. The alleged victim said that she had some Jack Daniels, and recalled one of the two men placing two more drinks in front of her, although she could not recall if she took them. The next morning, she woke up in an apartment she did not recognise, and felt aches, including in her vagina. Realising that the men had sex with her, she reported the matter to the police, though the investigation did not result in prosecution. The evidence of a toxicology expert concluded that at the time the two men had sexual intercourse with her, her “blood alcohol levels…indicated that she fell within the category of ‘severe and potentially fatal’. Another expert, a consultant psychiatrist, specialising in the metabolism, addiction and harm related to alcohol, said her blood alcohol levels would have meant that she was ‘expected to be unsteady, staggering, looking drowsy when sitting down, to appear muddled in perception and conversation, and she would appear to look confused.’ Given this and other evidence, the judge decided that the two men “took advantage” of the woman when she was vulnerable due to an excessive intake of alcohol. The court also said that since the woman’s cognitive functioning and decision-making processes were so impaired that she was incapable of giving meaningful consent.
Considering these realities, how should our society navigate sex while under the influence? I would suggest that we all need to take better care, and be more honest when navigating sex or possible sex when either or both parties are intoxicated. Perhaps this person who never mentioned sex to you before or ‘made a move’ is only now doing so because they are intoxicated? Of course, it may very well be that they drank to obtain ‘Dutch courage’ to broach the subject. The possible circumstances are endless, but it never hurts to err on the side of caution.
Chevy Devonish is an attorney-at-law. He is also a lecturer at the University of Guyana and a training consultant at Nations University. You can email him at chevydevonish@gmail.com
