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.