Sober Regrets and Shared Risk Taking: Navigating Intoxicated Consent and Rape in the Courtroom

Abstract

The difficulty with accusations of rape when a victim is voluntarily intoxicated has long prevailed 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.

Adults’ Understandings and Experiences of the Capacity to Consent to Substance-Involved Sexual Activity

“…R v Bree [2007] EWCA Cr.). Prevailing legal definitions of sexual consent note the importance of 'capacity ' (e.g., Sexual Offences Act, 2003, s.74) but often fail to model what this 'looks like' in a tangible sense (Clough, 2018;Temkin & Ashworth, 2004). In line with the Mental Health Capacity Act, which notes that cognitive and communicative abilities are necessary to consider when assessing a person's capacity to consent in applied settings (e.g., medical; 2005; s.3), we define 'capacity to consent' as the cognitive abilities (part of internal consent) and behavioral abilities (part of external consent) that are needed to make and communicate decisions during sexual activity.…”

“…Possibly, people make sense of these types of experiences considering the wider societal-level messages that are available to them. It is the case that in UK legal settings, an inability to remember the details of a sexual encounter has not always determined a complainant's lack of capacity to consent to sexual activity (Clough, 2018).…”