Rape: Consent is Consent


You’re on a night out and a bit worse for wear. You’ve given implied consent for the man, or woman, across the dancefloor to pounce on you. Apparently. Not so much, says the law.

David Osborne, a barrister from Somerset, issued a blog entitled, quite vulgarly, “She Was Gagging for It’. No, this isn’t the title of a 50 Shades style novel. It is, in fact, an excuse for rape, or so Osborne seems to be suggesting. I begin by saying brace yourselves. Osborne states in his blog that “I have always found distasteful and unattractive the suggestion that as the victim was blind drunk she therefore unable to give her consent to sex,”.

Hold on one cotton picking minute. That is absolute rubbish according to the previous Sexual Offences Act 1956 which provides that a LACK of consent can be demonstrated by evidence that by reason of drink, drugs, sleep, age or mental disability the complainant was unaware of what was occurring and/ or incapable of giving valid consent. Now, I do think that Osborne, despite the barrage of criticism he has received, will have supporters who say that you effectively have to sign a contract these days to evidence consent and avoid being accused of rape.

I can rubbish this argument using Osborne’s statement that “If the complainant (I do not refer to her as the victim) was under the influence of alcohol or drugs, or both, when she was ‘raped’, this provides the accused with a complete defence. End of story and a victory for fairness, moderation and common sense!”

The current Sexual Offences Act 2003 at s1-4 provides for the prosecution to prove absence of consent so how on earth is that favouring the victim as Osborne suggests? It doesn’t.

S74 is all about whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.

In R v Bree[2007] EWCA 256, the Court of Appeal explored the issue of capacity and consent, stating that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant’s state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, depends on the facts of the case.

Even the CPS’ guidance states that ‘prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent’ I do not see how the defendant has it bad.

Now, if the complainant is indeed intoxicated and does not give her consent does that not mean that the defendant could just say ‘we were drunk’ and get off scot free? That seems like a very dangerous precedent to set, especially given how difficult it is for victims of rape to confront their attacker and come forward in the first place.

Furthermore, , Osborne used the age old excuse that if the the complainant is dressed provocatively they are ‘asking for trouble’. That is utter nonsense, the complainant is dressed that way because that is how she wants to dress on that particular day, not because she wants the first man she sees to jump on her like a dog on heat.

Seems to me that the one who is ‘rat arsed’ here is David.


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