Rapes are committed in many contexts: within the family, in partnerships, by acquaintances, employers or colleagues, by strangers in public or private places, to name but some. They are always serious offences with uniquely disturbing consequences for the victims. Alcohol is seldom a feature in cases like these.
But increasingly in recent years, my court and others have had to address what I might term “night-out rapes”. It is my impression that these have burgeoned since the relaxation of the licensing laws.
In these cases the defendant is someone the complainant has met on a “good night out”. Maybe the pair talked, danced, apparently got on. In some cases the woman (it is usually a woman, but not always) will have been seen and targeted by the man (in my experience it is always a man) who is, in the words of the song “up all night to get lucky”.
In at least 90 per cent of the “night-out rape” cases I have dealt with, drink has featured. Occasionally drugs, notably ecstasy and cocaine, sometimes both, but predominantly it’s drink. Interestingly, I have never seen a case in which there was clear evidence of a “rape drug” being covertly administered, or even a convincing suggestion that it was. Usually both parties have been drinking. But more often than not the woman is most affected.
The issue is seldom whether sexual activity occurred. It is whether the complainant consented and/or whether the defendant reasonably believed that she consented.
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According to the Sexual Offences Act 2003 “a person consents if he [sic] agrees by choice, and has the freedom and capacity to make that choice”. (He, of course, embraces she: the rampant sexism of legal drafting!)
And there’s the rub. We all know that the effects of drink can range from mild merriment to flat-out coma. A comatose woman clearly has no capacity to consent and no man could reasonably believe otherwise. There is also a point before coma when the capacity to consent evaporates, not always obvious to the involved observer. Below that is the drunken consent, which even if later regretted or forgotten, is still in law consent. If she says at trial: “I was out of it, I remember little or nothing but I know I would never have consented”, and he says: “She was a bit pissed but she was all there, she wanted it”, how is a jury to decide, in the frequent absence of independent evidence?
How can they decide where on the spectrum of intoxication she was when she is unable to give reliable evidence?
Some people, male and female, do go looking for consensual sex as part of the night’s fun. I’m not condemning, just stating a fact. That cannot be ruled out by a jury.
But if a complainant’s faculties have been impaired by alcohol, the jury’s task is daunting. The prosecution has to make the jury sure that she did not consent and sure that he did not reasonably believe that she consented. Would anyone wish it otherwise, given the disastrous implications for a man wrongly convicted?
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In my experience the police make strenuous efforts to gather evidence. Medical examinations and complainant interviews are conducted with great sensitivity and sympathy. A defendant’s previous or subsequent sexual misconduct can, if appropriate, be revealed to the jury.
Let me make it clear that anyone who rapes a drunk victim commits a heinous crime. He is lower than the low and deserves severe punishment, as far as the law allows. Every judge, when passing sentence, is bound to regard the victim’s vulnerability through intoxication as an aggravating feature of the crime, not as mitigation.
Let me also make it clear that I am not “victim blaming”. I am trying to explain the difficulty of securing convictions in such cases and I think anyone who chooses to drink to excess should be aware of them.
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Yes, a person, particularly a woman, can make themselves more vulnerable to predators by getting seriously drunk. There will always be sexual predators, as there will always be thieves. It’s no good saying: “Men should be taught not to rape.” Not in this world.
Sadly the drunken victim of a predator may be unable do herself justice in court. Many times my heart has gone out to a woman who has gone through the ordeal of investigation, the trauma of the trial, but who saw the man acquitted because the jury couldn’t be sure, because she was drunk. That must be as devastating as the actual offence.
From years of experience I believe I could recognise the hallmarks of a genuine case even if the victim was drunk at the time and therefore a hopeless witness. But jurors who have not heard about rapes first hand do not have the benefit of my weary insight. From the judicial perspective this can be very frustrating. Judges do, as they are encouraged to, give directions designed to dispel the “rape myths” — for example “a real victim would fight back” , “if it was really rape there would be injuries”, “women who go out revealingly dressed are asking for it”, “she’s a prostitute so she can’t be raped”. But judges cannot pad out the evidence of an amnesiac victim.
I hope my observations will not deter the reporting of rapes. Complainants will be given every consideration and courtesy by the police and courts. But they and the public should not be blind to the legal realities and constraints, or the real-life dangers.
Mary Jane Mowat is a retired judge. She has prosecuted, defended and tried hundreds of rape cases over 40 years