Yetproponents of the act insist that there is now a greater guidance on the issueof consent with regards to an increased understanding of sexuality in thatintercourse should be considered as a union between two parties and not anassumption of male proposition. This therefore would have a knock on effect ofsending out important social signals relating to the boundaries of acceptablesexual behaviour.1Yet, if such an improved direction on the issue of consent does exist within theact, why is it necessary for the courts to look to common law for answersregarding capacity in which the complainant had the awareness, understandingand knowledge to comprehend the sexual act imposed upon them?2Asno comprehensive guidance is included within section 74 with regards to theinterpretation of capacity, Wallerstein urges legislative to intervene to offermore specific understanding, especially with regards to voluntary intoxication.3Rv Bree 2007 demonstrates the requirement for the law to be clear to ensureindividuals have the freedom and capacity to consent to sexual intercourse whenthey have genuinely been affected by voluntary intoxication.4As a result, Elvin suggests that this case has not increased consistency inthis area of law because of evidential problems and that there will always beexamples of human behaviour that are inappropriate for thorough legislativestructures.5 This is further shown in H.
R v Dougal 2005where it can be questioned whether the act offers sufficient protection to peopleat times of vulnerability.6Section 75 (2) provides protection for complainants who have been intoxicatedagainst their will but this section is narrow as to relates only tocircumstances where the victim’s intoxication is blameless; often when asubstance has been administered to them.7This consequently leads a lack of clarity whereby not all cases that should havegone to the jury have done so and additionally there exists no explanation asto why the administration of a stupefying substance, which is not adequatelydefined in the act, represents a rebuttable presumption and not an irrefutablepresumption.
8Itcould be said that a complainant who drinks reasonably are left unprotected bythe act whereas the complainant who drinks themselves into oblivion gainsprotection from the sexual offences act.9TheCPS urges advocates to remind the trial judge of the need to assist the jurywith the meaning of capacity whereby questions could be asked as to whether thecomplainant made the choice freely and was not constrained in any way but thisonly serves to further highlight the lack of inclusive guidance containedwithin the act.10Thequestion remains: how can a jury ever be satisfied beyond reasonable doubt whena complainant’s memories are disjointed due to intoxication?11Unfortunatelythe act with regards to consent and capacity appears to raise more questionsthan it is able to answer.
12Itis also concerning that the circumstances outlined in section 75 are exhaustivebut have omitted occasions of dubious consent, such as when the complainant mayhave been subjected to other forms of threats.13Section75 and section 76 lack significant addition to the previous law and concern canbe found with regards to the practical application of the circumstances foundwithin these sections as it is not obvious that the provision and thepresumption they give rise to will achieve much result on the outcome of thecases.14Further,why is section 76 is conclusive but not section 75? Obtaining compliance byemploying threats of violence is no less abhorrent than doing so by deceptionyet the latter is beyond question and the former is a rebuttable presumption.
15Temkin and Ashworth insist the categorisation of circumstances are at faultwithin the act. In fact, the restrictive list of section 76 could beincompatible with ECHR article 6(2) of the presumption of innocence and alsocould be easy to rebut and begs the question: what counts as reasonableconsent?16Thisisn’t helped by section 76 only permitting deception with regards to a personknown to the complainant, omitting deception as to essential attributes such assomeone pretending to be a doctor or a person in authority such as a policeofficer.17Aconclusion can only be created that suggests consent provisions within the actare not completely comprehensive in providing protection.
18Added to this, there are inherent complexities attached to the concepts offreedom, capacity and reasonableness.19Theact only offers protection where a complainant is involuntarily intoxicated orso drunk as rendered unconscious and as a result a clearer definition ofcapacity is required as well as a more wide-ranging list of circumstances inwhich to direct the jury as nearly all the examples of scenarios containedwithin the act relating to consent can be rebutted.20Sadlythe act has accomplished the real possibility of jury bias and while it soughtto demonstrate changes in social attitudes, it has only managed to naively addto the stereotypical approaches that still exist with regards to sexualrelationships due to its obvious limitations.211 J. Spencer, ‘The Sexual Offences Act 2003, ‘Child andFamily Offences’ (2004) Criminal LawReview 347 – 3602 X City Council v MB 2007 FCR371.
3 S.A Wallerstein, ‘Drunken consent is still consent or is it? A criticalanalysis of the law on a drunken consent following Bree’ (2004) Journal of Criminal Law 73 318.4 R v Bree 2007 EWCA Crim 256.5J, Elvin,’TheConcept of Consent under the Sexual Offences Act’ (2003) 72 Journal of Criminal Law,519.6 R v Dougal, unreported, November 2005 Swansea Crown Court.7Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (HartPublishing 2008).
8J,Stone,’Rape, Consent and intoxication: A Legal Practitioner’s Perspective'(2013) Alcohol and Alcoholism 1-2.9S.A Wallerstein, ‘Drunken consent is stillconsent or is it? A critical analysis of the law on a drunken consent followingBree’ (2004) Journal of Criminal Law 73318.10Jennifer Temkin,Rape and the Legal Process (OUP2006).
11 R vHysa 2007 EWCA Crim205612J. Spencer, ‘The Sexual Offences Act 2003,’Child and Family Offences’ (2004) CriminalLaw Review 347 – 36013Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (HartPublishing 2008).14J. Herring, ‘Human rights and rape: a reply to Hyman Gross’ (2007) Criminal Law Review,228-231.15S.
JLea, ULanvers and S Shaw ‘Attrition in rape cases; developing a profile andidentifying relevant factors'(2003) BritishJournal of Criminology, 43, 583-599. 16J.Temkin & A.
Ashworth, ‘The Sexual OffencesAct 2003: Rape, Sexual Assault and the Problems of Consent’ (2004) Criminal Law Review 328-346, at 336-7.17Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (HartPublishing 2008).18 Janet Loveless, CriminalLaw, Text, Cases and Materials (OUP 2008).19 Jennifer Temkin, Rapeand the Legal Process (OUP 2006).20J,Stone, ‘Rape, Consent and intoxication: A Legal Practitioner’sPerspective'(2013) Alcohol and Alcoholism1-2.21J.
Herring, ‘Human rights and rape: a reply to Hyman Gross’ (2007) Criminal Law Review,228-231.