Rape - Intoxication, Consent and reasonable belief

jaybeeveedub · 19-04-2011 03:47PM #1

The landscape in this jurisdiction seems to suggest that intoxication is a major barrier to successful prosecution of rape cases....

While the caselaw suggests that a woman who is intoxicated cannot consent R v Camplin, R v Lang,

Does this trump a reasonably held honest belief that the woman was consenting DPP v Creighton?

How severe must intoxication be to make consent impossible in this jurisdiction.... If a woman is unable to remember giving consent it would seem the DPP will not prosecute.... must she be comatose, incoherent, slurring....??

Does the DPP need to push the boundaries more? If so many women who are tested early are severely intoxicated, should the DPP be pursuing more of these cases on the basis of inability to give consent?

Reloc8 · 19-04-2011 05:35PM

All cases are assessed on their own particular merits.

The problem with intoxication in this instance is not the suggestion that consent was present because of intoxication, but general credibility and reliability of the account given.

Some very drunk people are capable of giving extremely credible accounts of what they assert has happened, some very sober people are not.

Some instances of rape or other assault will be corroborated by other evidence, forensic or witnesses etc. Again this has nothing to do with intoxication of the alleged victim (although the witnesses themselves may have been intoxicated and again that is something to weigh up).

It is reasonable to assume that all things being equal a jury will be less inclined to have faith in the account given by a highly intoxicated person where that version is challenged versus the testimony of a less or unintoxicated person, irrespective of the nature of the allegation being made by that person.

Does this mean that highly intoxicated people are more vulnerable to being raped ? No, the vulnerability arises from being highly intoxicated. Does this mean that a case in which the alleged victim is highly intoxicated than one in which they are not is less likely to be prosecuted ?

Yes.

jaybeeveedub · 20-04-2011 08:25AM

yes it's plain that "drunk consent is consent"

what I'm wondering is when does

intoxicated, we can't mount a credible prosecution,

become

intoxicated, it doesn't matter what reasonable belief the defendant held the claimant was unable to consent

in both cases there will be lack of testimony on the part of the claimant....

must the claimant remember passing out?

johnnyskeleton · 20-04-2011 10:01AM

jaybeeveedub wrote: »

what I'm wondering is when does

intoxicated, we can't mount a credible prosecution,

become

intoxicated, it doesn't matter what reasonable belief the defendant held the claimant was unable to consent

Never. The ingredients of the offence are that there was intercourse, that there was no consent and that the accused knew or was reckless as to whether there was consent.

Where someone is so intoxicated as to be unable to consent, then the second criteria is established. Then it is a matter as to whether they can show that the accused knew or was reckless as to the absence of that consent. So while extreme intoxication might undermine a suggestion that the accused didn't know about the lack of consent, it does not remove the need to prove such.

jaybeeveedub · 20-04-2011 12:25PM

johnnyskeleton wrote: »

Never. The ingredients of the offence are that there was intercourse, that there was no consent and that the accused knew or was reckless as to whether there was consent.

Where someone is so intoxicated as to be unable to consent, then the second criteria is established. Then it is a matter as to whether they can show that the accused knew or was reckless as to the absence of that consent. So while extreme intoxication might undermine a suggestion that the accused didn't know about the lack of consent, it does not remove the need to prove such.

this is the nub of my question.....

in any case the claimant will be pleading "no consent"

what is the criterion used to assess whether intoxication precluded consent being given?

if a claimant was so drunk as to not be able to remember the intercourse happening, or

so drunk as to not be able to remember if they consented or not, does that qualify as sufficiently intoxicated for her to be unable to give consent....?

if not then how does a prosecutor establish that consent was impossible due to the level of intoxication?

jaybeeveedub · 20-04-2011 12:35PM

and as to the last line of the title....

if the claimant is pleading that consent was impossible due to intoxication, how does that fare in court in opposition to the accused's claim of a reasonably held belief that consent was given....

the Hanly report seems to suggest that juries come down against claimants who were intoxicated, but there seems to be scant info on whether said claimants were basing their "no consent" stance on their inability to give consent through intoxication or whether intoxication was just a circumstantial aspect of the case

johnnyskeleton · 20-04-2011 01:27PM

jaybeeveedub wrote: »

this is the nub of my question.....

in any case the claimant will be pleading "no consent"

I take it the "claimant" is the complainant i.e. the person who alleges that he/she was raped? In such case, they don't actually plead anything because it is the State that is taking the case.

In all rape cases it is argued that there was no consent. That is to say the prosecution must prove that there was no consent otherwise it is not rape.

jaybeeveedub wrote: »

what is the criterion used to assess whether intoxication precluded consent being given?

I don't really get the question. If the jury finds that a person was so intoxicated that they could not consent then they can find that there was no consent. I suppose the test is whether the person was able to comprehend what was going on.

jaybeeveedub wrote: »

if a claimant was so drunk as to not be able to remember the intercourse happening, or

That creates its own problems. In such a case, where is the evidence of sexual intercourse? Presumably someone else would witness it.

jaybeeveedub wrote: »

so drunk as to not be able to remember if they consented or not, does that qualify as sufficiently intoxicated for her to be unable to give consent....?

Again that would be problematic because if someone says that they remember having sex but can't recall whether they consented or not then there must be a doubt as to whether it was rape or not.

jaybeeveedub wrote: »

if not then how does a prosecutor establish that consent was impossible due to the level of intoxication?

Generally because the person is unconscious or asleep. Typical examples would include where the complainant wakes up half way through.

how does that fare in court in opposition to the accused's claim of a reasonably held belief that consent was given

The two aren't really in opposition. There are three elements to a rape case - 1 penetration 2 no consent 3 knowing or reckless as to there being no consent.

1 and 2 are the actus reus of the offence i.e. the physical circumstances of the offence. They are usually satisfied, at least on a prima facie basis by the complainant or someone else giving direct evidence of the penetration and the lack of consent. Consent must be positively given so evidence that the person was completely immobile would satisfy this.

The controversial part is the 3rd part, the mens rea. The issue as to whether there was actual consent is not as important in many cases as the issue as to whether there was belief of consent. So where someone doesn't remember what happened fully they might give evidence that they didn't know what was going on and that would be enough, if believed, to show that there was objectively no consent. But the accused may still argue that even if they didn't know what was going on, they seemed by their words or actions to know what was going on and to be consenting.

jaybeeveedub · 20-04-2011 02:04PM

apologies, I typed that in my iphone and it autocorrected complainant to claimant....!! finger typing beware

I used "plead" as I wasn't sure what term one would use for her assertion when she is not party to the case?

I'm probably not explaining my question with sufficient clarity... as it has me confused!

jaybeeveedub · 20-04-2011 03:03PM

johnnyskeleton wrote: »

Generally because the person is unconscious or asleep. Typical examples would include where the complainant wakes up half way through.

The two aren't really in opposition. There are three elements to a rape case - 1 penetration 2 no consent 3 knowing or reckless as to there being no consent.

1 and 2 are the actus reus of the offence i.e. the physical circumstances of the offence. They are usually satisfied, at least on a prima facie basis by the complainant or someone else giving direct evidence of the penetration and the lack of consent. Consent must be positively given so evidence that the person was completely immobile would satisfy this.

The controversial part is the 3rd part, the mens rea. The issue as to whether there was actual consent is not as important in many cases as the issue as to whether there was belief of consent. So where someone doesn't remember what happened fully they might give evidence that they didn't know what was going on and that would be enough, if believed, to show that there was objectively no consent. But the accused may still argue that even if they didn't know what was going on, they seemed by their words or actions to know what was going on and to be consenting.

That makes sense alright.

I follow that they consent is related to the two aspects AR and MR...

The two aspects will be decided on the same evidence in the courtroom will they not?

The prosecution arguing that this woman was intoxicated to the extent that she was unable to consent, therefore there can be no reasonably held grounds for the belief that she was?

johnnyskeleton · 20-04-2011 03:22PM

jaybeeveedub wrote: »

That makes sense alright.

I follow that they consent is related to the two aspects AR and MR...

The two aspects will be decided on the same evidence in the courtroom will they not?

The prosecution arguing that this woman was intoxicated to the extent that she was unable to consent, therefore there can be no reasonably held grounds for the belief that she was?

There is overlap, but the latter may require more evidence. For example, it usually suffices for someone to give evidence that they did not consent, but the issue as to whether the other person reasonably thought that they were consenting would be based on further evidence.

jaybeeveedub · 20-04-2011 03:39PM

so the DPP is unlikely to proceed with a case with intoxication unless the evidence that the intoxication was so severe would serve to make it extremely difficult to show an honest belief in consent?

Victor · 20-04-2011 05:32PM

johnnyskeleton wrote: »

In all rape cases it is argued that there was no consent.

And some situations where there is nominal consent, the person may not have the legal ability to consent, e.g. if they are under-age.

johnnyskeleton · 20-04-2011 07:38PM

jaybeeveedub wrote: »

so the DPP is unlikely to proceed with a case with intoxication unless the evidence that the intoxication was so severe would serve to make it extremely difficult to show an honest belief in consent?

Who knows what the DPP would do, but its not as stark as that. If there is a credible complaint of rape and no special or exceptional reason not to prosecute, the DPP usually will. Obviously if he doesn't think there is much chance of a conviction he might not prosecute, but that all depends on the circumstances.

Victor wrote:

And some situations where there is nominal consent, the person may not have the legal ability to consent, e.g. if they are under-age.

Yes, but that is also a separate offence.

jaybeeveedub · 21-04-2011 08:21AM

I was just surprised by the report that Hanly did (I haven't read the book but the extract from the RCNI) and the statements that where alcohol is involved due to unreliable evidence the DPP will not proceed....

I was reading up on this area(intoxication) and rohypnol for a past exam problem question and wanted some real world info (which our lecturer likes to see) to get a 1.1!!

Now I don't know what to advise!!! except hope she says she can't remember and get a RvDougal result!!

johnnyskeleton · 21-04-2011 07:03PM

jaybeeveedub wrote: »

I was just surprised by the report that Hanly did (I haven't read the book but the extract from the RCNI) and the statements that where alcohol is involved due to unreliable evidence the DPP will not proceed....

I'm not sure what the Hanly report is all about, but I would be extremely skeptical if he suggests that the DPP never proceeds with a rape charge where the complainant is intoxicated.

Perhaps it is best to explain how rape cases are investigated and prosecuted to give you a better understanding.

Typically, the gardai will get the complaint from the complainant directly and/or from a friend or associate. If it allegedly happened earlier that day they are usually brought to hospital, but it is also relatively common for rape victims to go straight to hospital. Where a significant period of time has elapsed there is less chance of obtaining medical or DNA evidence, but that is not fatal to a prosecution.

The Gardai will also take a formal statement of complaint and may go out and see if they can find any other witnesses or other evidence e.g. bedsheets, CCTV etc.

If the statement of complaint is plausible (additional evidence and an early complaint add to its plausibility, while certain circumstances such as intoxication may diminish its plausibility) they will look for the the alleged rapist. If he/she can be indentified, located and is available for questioning then the gardai will ask them for a voluntary statement or else arrest them and do a cautioned Q&A session that will usually be a bit more critical.

Once all this is done, they send the file to the DPP. The DPP will first look to see whether there is a credible complaint. That is to say, if when reading through the statements of both parties and any other evidence a jury could possibly believe that it was rape then there is a credible complaint. The DPP doesn't necessarily decide whether he will get a conviction or not, but rather whether a conviciton is reasonably possible. He then goes on to consider other issues such as public policy, sympathy for the accused etc which would be reasons not to prosecute.

So essentially, the DPP when looking at all the evidence has to decide whether a conviction is reasonably possible. Sometimes, intoxication will mean that no jury would ever believe it was rape. Other times the intoxication will make little difference and could even support the allegation of rape (if, for example, a drink was spiked).

So at all times, intoxication is not a complete bar to prosecution, because it does not necessarily mean that the complainant's evidence is unreliable. However, where the intoxication causes serious doubts to be raised over the credibility of the complainant, the DPP may decide that there is no real possibility of a conviction. However, this is decided on a case by case basis and there are no hard and fast rules.

Victor · 23-04-2011 02:41PM

jaybeeveedub wrote: »

I was just surprised by the report that Hanly did (I haven't read the book but the extract from the RCNI) and the statements that where alcohol is involved due to unreliable evidence the DPP will not proceed....

In many prosecutions, a view will be taken as to the reliability of an intoxicated witness.

Rape - Intoxication, Consent and reasonable belief

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