The English court system is considering a controversial new report by Dame Elish Angiolini that would establish a rule that women cannot be viewed as consenting to sex if they are found to be intoxicated. The report is pushing an amendment of the Sexual Offences Act to establish the rule.
The current law allows the jury to decide such questions in the specific context of the case. They use their common sense and their view of the credibility of the witnesses. However, Dame Elish, a former Lord Advocate in Scotland, wants woman’s incapacity to consent to be a codified exception “embedded in legislation.”
Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent. The new effort is heralded by Director of Public Prosecutions Alison Saunders who said that with the sweeping change rape victims would no longer be “blamed” by society if they are too drunk to consent or if they simply freeze in terror.
The problem is that it could foreclose the key defense in such cases and denies jurors the ability to make this determination in the context of the case. In 2007, a court ruled that a woman could consent to sex even if drunk which is the standard approach in such cases. Intoxication can lead to a determination of incapacity and often does. However, there are different levels of intoxication and cases have different facts of when and how consent was given. Moreover, the level of legal intoxication is falling in many countries with the crackdown on drunk driving. It is not clear what level of intoxication would be viewed as per se foreclosing consent defenses. There is also the question of whether the same standard should be applied to the men if both parties are intoxicated — negating intent to rape.
Dame Elish admits that the various changes would required a “radical change” in the way they treat victims, but it could be equally radical in terms of the due process accorded such cases. I think that she is clearly correct in getting police to document the level of intoxication after a report by the victim is an important step and should be a regular practice. She is also clearly correct that at some level of intoxication there cannot be consent. However, the rule presents a far more sweeping rule and could clearly limit the core defense in such cases.
I am very sympathetic to the overall report which identifies some clear problems in staffing, resources, and handling of cases. She is also right that there appears to be no clear rule established for handling cases involving alcohol consumption. The problem is drawing a codified line in such cases that would be both consistent and clear and fair. There may be a good reason why intoxication is recognized as a critical factual determination but not codified in this sense. It is the type of contextual element that touches on some many elements of credibility and facts both preceding and during the sexual encounter. That does not mean that some codification could not be done but it is fraught with dangers if it is meant to curtail the defense of consent in my view.
Source: Daily Mail
“It simply allows for a situation to be argued from the beginning through the other perspective, that of the woman. ”
No, it stipulates that women cannot agree to any contract if they have touched alcohol or, by extension, any other mind or mood-altering substance. (“It wasn’t me, it was the Xanax!“)
That is, women are children, compared to men.
JAG represents the model for TRUE feminism. If only her wisdom and common sense could be infused into the mindless, angry, women making all the noise. I have said this many times but it bears repeating. When I worked for a prosecutors office in the late 70’s and 80’s, the pendulum was cutting off the heads of rape victims. It was horribly unfair to women. Now, the pendulum has swung just as radically the other way. The only people I see benefitting from this draconian proposed legislation are the manufacturers of those personal BAC pens. So, a man will ask a woman prior to coitus, “Would you please blow…no honey, on the BAC pen first.”
Thank you Isaac. As I read your comment, the problem isn’t resolved and therefore nothing to applaud. We’ll still have the men that will abuse women, we’ll still have the women that get no justice, we’ll still have men that will be falsely accused by women that refuse to take responsibility for their own actions.
It has all the appearance of “taking decisive action” but in the end it is just another law that will be awaiting a correction.
Olly – ya’ll realize we do not have enough prisons for all the people who are going to be accused of rape?
Olly
That’s the way society works, or haven’t you noticed. One extreme gives way to another. In this case, for as long as one can remember, women were automatically seen as promiscuous unless there were physical signs of force having been applied. Even then the woman was seen as complicit in all but the most heinous crimes. The move by the Brits here will obviously be tempered with the arguments ranging from both the man and woman being intoxicated and equally responsible and the given that with women’s rights to equality come equal responsibilities.
However, this places the beginning of a case on the other side of the argument, the one where the man gets the girl drunk in order to take advantage of her. A ‘mickey’ of Lemon Gin known as panty remover may be seen as ‘just another youthful experience’ or something akin to date rape drugs.
This new ruling does not nail every guy who has sex with a woman following an evening’s drinking. It simply allows for a situation to be argued from the beginning through the other perspective, that of the woman. Like most, if not all, laws it is enacted as a reaction to a situation in dire need of rectification.
One can read all the other baggage into it as one wishes and most of those arguments will be presented over time. And as with all like situations the laws with be tempered and evolve, or at least one would hope so.
Or, as JT and others typically post, this could be the end of us all.
If we extrapolate, law will become infinite.
Is there any remaining doubt that the Founders deliberately and with extreme prejudice, literally established and implemented severely limited government, as clearly delineated in the Preamble, and that they did not publish first the essential American context, to be ignored.
Self-reliance (i.e. responsibility) goes hand in hand with freedom.
Is there any person left on this collectivist planet who can take care of himself?
How did the cavemen ever make it out of the caves if they were so incompetent and dependent?
In olden days, young girls might have been advised to stay close to home and not drink alcohol.
God forbid.
Well, if this is the law they should add that if the woman is ovulating, she clearly gave consent.
I am getting sick of the WOMEN Radical Feminists who are making a mockery of Rape and sexual assault.
These days, if a guy kisses a girl, and has not asked her, she FEELS violated, and some people will tell her that she was sexually assaulted.
Women are being treated like children, it is disgusting. The Irony is that it is Radical Feminists who are
treating the women as children, NOT the men.
Just puts the burden of proof from her consent to her being intoxicated. She can’t say she is drunk if she is drunk and he says she was not drunk. The time factor being most important.
While I applaud her wanting rape to be taken more seriously, this is NOT the way to achieve this.
Rape Victims are being let down by our courts Rape is hard to prosecute due to the He Said, She Said nature of the crime.
This is NOT the way to handle this, this law would just push ALL the responsibility onto the men,
that is the OPPOSITE of what Feminism is supposed to be.
This does seem to rely on the view that women cannot be trusted to make their own decisions.
In most jurisdictions we allow women to drive with BAC less than .08.
But with this, it is rape if she has consumed any amount so that BAC > .00? Really?
I hope they did not put too much vanilla extract in the birthday cake.
I guess this puts an end to the old ‘thanks for a wonderful evening, would you like to come in for a glass of wine?’ Such indiscretions could lead to an unhappy felony.
Some how, I don’t believe treating rape seriously requires that we treat women like children.
The laws do not need to be changed. If evidence shows that the woman was so intoxicated that she could not consent– ie, that she was unconscious– then the defense of consent can’t be established anyways.
There is no need to throw the onus on the male. If we stop sex with drunk women there are going to be a lot of very angry drunk women out there and the population rate will plummet. That may sound “biased” but people need to get a grip on reality.
There are a lot of situations where laws won’t be able to eradicate evil. And the evils generated by new laws will exceed the original harm in question. There will always be grey areas of consent in sex. Consider this:
http://www.theatlantic.com/sexes/archive/2013/06/when-rape-is-a-fantasy/276933/
Beer: The first aphrodisiac, allowing ugly women to get laid for millennia. Cf., “Beer Glasses.”
Women are too fragile and irresponsible to be allowed to read, watch movies, drink alcohol or have sex without a chaperone present.
Maybe not even then.
There is a responsibility for getting drunk, isn’t there?
Isaac,
What does this actually accomplish that you would applaud? An intoxicated woman claims she was raped and an intoxicated man claims it was consensual. If the scales of justice are balanced then the mutual intoxication would cancel itself out and we are left with a rape vs consent case. Nothing has changed. But of course the elephant in the room is “IF”.
What is that spider web doing on her head?
What an awful idea.
During the Camelot years, Kennedy clan always won these cases with good lawyers and PI’s. Women always had other motives. Money.
Correction. Ted Kennedy was a problem when car went into water. Female date drowned and Ted waited to call for help.
This is a perfect example of the pendulum swinging equally in the opposite direction. Rapists have taken advantage of the grey areas through zealous attorneys who either through the obligation to defend their client or simply to win or both, have discarded the rights of the victims and turned them into the cause for rape, through technicalities and weaknesses in the court and prosecutorial systems.
Obviously this new extreme in the other direction will have to survive the scrutiny of the free legal system and most probably be maneuvered back towards the center. This is nothing more than the system adjusting itself. However one must applaud the Brits for taking care of their problem. Now if only the US could take care of its problems.
Beaten by Olly.
And we all know the answer. 3rd wave feminism (not to be confused with real feminism) follows the valar marghulis model of responsibility.
Wouldn’t this also mean the man was incapacitated and not responsible for the “rape” if he was drunk?