Alcohol and consent
This morning I read this article about a case where the defendant is seeking leave to appeal to the High Court to challenge the law in NSW and South Australia which say that apparent consent to sex may not be real consent if the women is too drunk to understand what she's consenting to (at least that's my understanding of it - you can read the High Court transcript of the application for leave for yourself if you're so inclined).
Apparently, the Court of Criminal Appeal in NSW held that "it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not be consenting and, notwithstanding that realisation, decides to proceed to have sexual intercourse with her and has such sexual intercourse, without there being some additional, independent requirement that he is determined to have sexual intercourse with her, whether or not she is consenting".
In this particular case, the girl was "vaguely awake" (on the defendant's testimony) and they were both intoxicated.
I think some of the statements made by the defendant's counsel in the transcript are a little unfair. There is a big difference between a girl having lost some of her inhibitions from drinking and consenting to sex under those circumstances, and a girl who is so drunk and stoned that she's barely aware of what's happening to her. In the first case, I would say there is consent, but not in the second case.
Of course, the issue in this case is where in that spectrum the girl in this case actually fell. I don't know all of the facts and I'm not going to speculate on that, but the issue before the High Court is an interesting one.
Listening to: Women in Docs - Under a Different Sky
Apparently, the Court of Criminal Appeal in NSW held that "it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not be consenting and, notwithstanding that realisation, decides to proceed to have sexual intercourse with her and has such sexual intercourse, without there being some additional, independent requirement that he is determined to have sexual intercourse with her, whether or not she is consenting".
In this particular case, the girl was "vaguely awake" (on the defendant's testimony) and they were both intoxicated.
I think some of the statements made by the defendant's counsel in the transcript are a little unfair. There is a big difference between a girl having lost some of her inhibitions from drinking and consenting to sex under those circumstances, and a girl who is so drunk and stoned that she's barely aware of what's happening to her. In the first case, I would say there is consent, but not in the second case.
Of course, the issue in this case is where in that spectrum the girl in this case actually fell. I don't know all of the facts and I'm not going to speculate on that, but the issue before the High Court is an interesting one.
Listening to: Women in Docs - Under a Different Sky
posted by OLS |
Tuesday, May 31, 2005 | 9:39 am
2 Comments:
Actually, i think consent isn't in issue at all, only whether D has a mistake defence (neither intention nor recklessness). HC isn't considering whether signs of consent when slightly tipsy/drunk/really drunk is real consent (question of fact i presume), but rather whether in such cases D will be guilty because he is aware that there is a possiblity that the consent is not true. I think D's formulation is clearly better as alcohol involved sex is fairly common and I think all you can ask of men and women in such situations is to NOT intend to rape the other person, and to have honestly considered whether consent has been given by the other side. Requiring you to abstain from sex because of mere possibility of non consent is silly and undoable in today's environment, and to require a test of probable consent in D's mind just creates a type of negligent rape action (as D's subj intent is in question, ofcourse reasonable standards would have to be used), and we probably don't want a negligent rape action.
Now, back to cramming for evidence exams.
above should read (as although D's subj intent is in question, reasonable standards would of course have to be used in answering the subjective test), and we probably don't want a negligent rape action.
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