Not an invitation to rape: the Sexual Offences Act 2003, consent and the case of the 'drunken' victim

Abstract

T he aim of this paper is to look at the development of the law of consent in the light of the changes in the law and consider whether the reforms have achieved their stated aims of providing "coherence and clarity".I will seek to argue that whilst there has been some progress and some recognition of the problems faced by rape complainants, changes to the substantive law alone will not make a significant difference, particularly in cases of rape involving alcohol.What is needed is a broader reform agenda which tackles problematic legal definitions but also seeks to change stereotypical perceptions of rape complainants through measures such as effective public information campaigns and the strategic use of expert evidence.In the light of these suggestions, it is argued that the decision of the government to abandon further reform proposals, such as a rebuttable presumption of non-consent where the victim is intoxicated, is a missed opportunity which has led to a return to the position prior to the Sexual Offences Act (SOA) 2003.The effect of this is that societal attitudes to rape and rape myths continue adversely to influence verdicts, to interfere with the proper consideration of the specific evidence in "difficult" cases, and to undermine the efforts of policy and legislation to bring about meaningful change.* The author would like to thank the anonymous reviewer for valuable comments on an earlier draft of this paper.1 R v Bree [2007] EWCA Crim 256, at 22. 2 www.homeoffice.gov.uk/crime-victims/reducing-crime/sexual-offences/. 3 Arguably, the text of the advertisement is also objectionable as it presents a one-dimensional way of thinking about a woman's body as a place that another enters.reconstruction of consent in criminal law" (2007) 70 Modern Law Review 225, p. 240, and the Court of Appeal in Bree [2007] EWCA Crim 256, para.32. 7 [2007] EWCA Crim 256.8 J Rozenberg, "Law on consent in rape cases is clear enough", Daily Telegraph, 21 June 2007.See also N S Rumney and R A Fenton, "Intoxicated consent in rape: Bree and juror decision-making" (2008) 71(2) Modern Law Review 271-302; J Temkin and A Ashworth, "The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent" (2004) Crim LR 328-46; Elliott and de Than, "The case for a rational reconstruction", n. 6 above.9 J Bindel, "Just another week of rapes", The Guardian, 29 May 2009; R Williams, "Postcode lottery in rape convictions getting worse", The Guardian, 10 June 2009.10 Home Office, Setting the Boundaries: Reforming the law on sex offences (London: Home Office 2000).

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