It’s Not Always Rape If A Woman Is Drunk, Says Judge

A woman cannot claim rape just because she was drunk, a top judge declared yesterday. The Appeal Court ruling freed a young man jailed for rape after he had sex with a drunken student. It also raised deep doubts over the Government’s latest attempts to toughen rape laws.

Plans include a ‘sex breathalyser’ law under which a woman who had consumed a certain amount of alcohol would legally no longer be able to consent to sex. But the Deputy Lord Chief Justice, Sir Igor Judge, and two other senior judges branded the idea unrealistic.

A woman who is very drunk may still be capable of agreeing to sex, they said. They quashed the conviction of software engineer Benjamin Bree, 25, jailed for five years in December after a drunken evening with a 19-year-old student.

The girl drank between four and six vodka Red Bulls and two pints of cider and Mr Bree was also drinking heavily. They returned to her hall of residence at Bournemouth University, where, she told Bournemouth Crown Court last year, she was ‘continually throwing up’.

She said her next memory was waking up to find Mr Bree having sex with her. She told the jury her memory was “very patchy” and I knew I didn’t want this but I didn’t know how to go about stopping it”. Mr Bree told the court she had given her consent and “seemed keen”.

Sir Igor, sitting with Lady Justice Hallett and Mrs Justice Gloster, quashed the conviction because he said the trial judge’s directions to the jury had been “vague in the extreme”. He said the case meant the court had to examine the effect of voluntary heavy alcohol consumption.

Sir Igor said sex amounts to rape if the woman is incapable of giving consent. But things are different if she is still capable of making a decision.  He said: “If, through drink, or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse, she is not consenting.

“Subject to questions about the defendant’s state of mind, if the intercourse takes place this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.” The judge said it would not be right to lay down rules – “some kind of grid system” – that say a woman who has reached a set level of drunkenness is incapable of consent.

He added: “Experience shows that different individuals have a greater or lesser capacity to cope with alcohol. Provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves.”

Ministers had been expected to publish a paper setting out a new law on rape and alcohol early this year. It has failed to appear and there has been speculation that the Government has run into deep opposition from the judiciary.

Earlier this year the Council of Circuit Judges, which represents 637 judges who sit in Crown Courts, said it should be left to juries to decide whether a woman is capable of consenting to sex.

Home Secretary John Reid and his ministers remain committed to pushing up the number of convictions for rape, which they say is far too low. At present only one complaint in 20 ends in the conviction of a man in court.

The Home Office said yesterday: “We need to tackle the myths, particularly the view that victims are either partially or fully responsible for the assault they have experienced if they have been drinking. Rape is never the responsibility of the victim, whatever the circumstances.”

The Home Office has been considering a study by the Association of Chief Police Officers which found that a “significant” number of rape and sexual assault victims had drunk at least the equivalent of eight pub glasses of wine.

This is equivalent to two and a half times the drink driving limit. At these levels, said the ACPO study, a woman can be expected to show “marked intoxication levels”. But it warned that back calculations used to work out how drunk a woman may have been at the time of an alleged rape could give only approximate answers.