Drunken consent is still consent
Reports of a recent court judgement claimed that 'binge-drink women may lose right to claim rape'. Some sobriety is required.
‘Binge-drink women may lose right to claim rape’, reported the front page of The Times (London) yesterday, just as Britain’s new 24-hour drinking laws came into force.
This was reporting the case of a female student who got very drunk at a party; she was ‘escorted’ back to her room by a male student, and they allegedly had sex in a corridor. She claimed that she would not have agreed to have sex with the man, and that it was rape. But the High Court judge apparently ‘threw out’ the case on the basis that ‘drunken consent is still consent’ – and instructed the jury to deliver a not-guilty verdict, ‘even if you don’t agree’.
Young women could take fear from this story. If they wind up unconscious after a Bacardi too many, will they be fair game? Should they hold back from that last drink to be on the safe side?
However, there was a gap between the presentation of the court case and the reality. The case collapsed because there was simply no solid evidence that rape had taken place. The young woman admitted that she could not remember whether or not she had consented, or even whether sex had occurred. The prosecution had to prove beyond reasonable doubt that sex had taken place, and that it was not consensual. Given that she was the prosecution’s one and only witness, the case couldn’t go on.
As a letter pointed out today in The Times, the court hadn’t actually reinterpreted the law on rape. ‘There was…no finding made by the court…that had the woman been unconscious through drink she would still have been considered to have consented to sex. There was absolutely no suggestion of women losing a right to claim rape which they would otherwise have.’
The letter also added: ‘The statement that “drunken consent is still consent” is not a novel one and is surely correct.’ Indeed, people do things while drunk that they wouldn’t dream of doing normally, but that doesn’t mean they don’t consent. Otherwise, women would have to sober up before they went to bed with anyone – a patronising notion that appoints the state as chaperone. New laws on sexual offences come dangerously close to supporting this idea (see Rape surveys: a reality gap, by Josie Appleton). These laws should be opposed.
The alleged goings on in that university corridor were clearly not pleasant or proper. The point, though, is that a court has to prove that rape took place. If found guilty, the defendant would spend the next 10 years (or more) in jail. Clearly a jury has to be sure before taking that call. In this case, the evidence just wasn’t there.
The anti-binge drinking lobby presented this case as a warning to young women. This looks like an attempt to scare them out of going to pubs and steer them away from excess – at a time when single women can no longer be barred from bars by the assumption that they are all prostitutes. Young women should resist such scare tactics.
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