Campaign on consenual sex

The Government has launched a campaign warning men to ensure that a woman has consented to sex in order to avoid being accused of rape.

The £0.5 million campaign, consisting of magazine and radio adverts and posters, is designed primarily to reduce the number of sexual assaults taking place when a woman is drunk. The adverts will feature in ‘lads magazines’, on radio stations and in pub washrooms. Aside from its obvious coarseness and vulgarity, the campaign also raises questions about how far, if at all, individuals can be held responsible for their actions while intoxicated.

It is well known that alcohol is implicated in a high proportion of cases of sexual violence, and a recent study by the Metropolitan Police found that more than a third of women who reported being raped had consumed alcohol immediately before the alleged attack.

However, the Government is concerned that many cases of alleged sexual assault fail to reach the courts because the victim cannot remember all the details due to having been drunk, or judges have stopped trials on the grounds of the unreliability of the accuser’s evidence because of her being intoxicated at the relevant time.

The Government has also issued a consultation paper – ‘Convicting Rapists and Protecting Victims – Justice for Victims of Rape’ – which seeks views on the problem of capacity or incapacity to give consent to sex due to alcohol intoxication and on means of overcoming the problem.

Launching the advertising campaign, Home Office Minister Fiona Mactaggart said: “For a long time, work to raise awareness of sexual violence has focused on the need for women to take responsibility for their personal safety. That is still important, but I believe that we need to start putting the onus onto men and make them aware of their responsibilities.

“I want young men to see these adverts and realise that they should not be having sex unless they have secured the consent of the other person. Our campaign is not saying ‘don’t have sex’; it is about ensuring that sex is mutually agreed. Victims of crime often feel they are to blame for the offence, they are not - perpetrators are. But I want to make sure that men, who are most often the perpetrators of this appalling crime, are fully aware of their responsibility to seek consent before having sex. I hope that greater awareness of the law and a clearer sense of everybody’s responsibilities will lead to a reduction in the number of rapes committed.”

The Sexual Offences Act 2003 set down for the first time that a defendant in a rape case would need to show that he had reasonable grounds to believe that the other person had given her consent. The Act also introduced a definition of consent – that a person consents if s/he ‘agrees by choice, and has the freedom and capacity to make that choice.’

Ministers insist that in sexual matters, at least, giving consent is an active not a passive process, and that the onus is on the man to take positive steps to ensure that the woman in question is actively consenting to sexual activity.

The problem arises, however, when modern sexual mores permitting or encouraging casual sexual relationships coexist with the binge drinking culture. Does drunken consent count as consent? Clearly, if a woman is so drunk as to be unconscious, the question of her consenting to sex does not arise. However, speaking on BBC TV’s Breakfast programme, Ms Mactaggart said it was important “that men were aware of the risk in having sex with a woman who was too drunk to really know what she was saying.” This clearly implies that even if the man does actively seek consent and obtains it, he could still be accused of rape if, subsequently, the woman’s consent is ruled not to count as a result of being given while under the influence of alcohol.

Ms Mactaggart’s comment appears, on the face of it, to conflict with the Home Secretary’s commitment in a 2002 White Paper ‘Protecting the Public’ that drunkenness would not be deemed to invalidate consent: “I have rejected the suggestion that someone who is inebriated could claim they were unable to give consent – as opposed to someone who is unconscious for whatever reason, including because of alcohol – on the ground that we do not want mischievous accusations.”

However, the Solicitor General, Mike O’Brien, suggested that the law may need ‘clarification’ to allow a jury to decide whether the woman was too drunk to be capable of consenting. If drunken consent is ruled invalid, it seems to follow that whenever sexual intercourse takes place with a drunk woman, then the man is a rapist by definition.

Given contemporary acceptance of both drinking to intoxication and free and easy sexual mores, it also seems to follow that high proportions, if not most, young people have either been raped or are rapists. A survey commissioned for Channel 4 TV found that 20% of males and 13% of females aged 15-19 cited alcohol as the main reason for first intercourse, and the younger the woman the more likely it was that alcohol was involved. The incidence of drunken sex is likely to be substantially higher in some older age groups.

Mr. O’Brien did not comment on cases in which the man is also drunk, and on any need to clarify whether, if drunkenness in a woman is held to render her incapable of giving consent, drunkenness in a man should be regarded as rendering him incapable of seeking it.

A Psychiatrist’s Perspective – Dr Jonathan Chick

There is another law which depends on an assessment by an individual of whether another person is ‘drunk’, namely the law that alcohol should not be served to an intoxicated person. There have never been more than a handful of prosecutions in recent times under this law, and one reason has been the difficulty in establishing the definition of intoxication. Most people coming up to the bar for a third or later drink would have some degrees of psychomotor deficit, except the markedly dependent (‘alcoholic’) drinker who might not manifest that till the 6th or 7th drink.

The drink-driving legislation did away with the difficulty of definition, by specifying a maximum blood, and then a breath, alcohol concentration, above which a driver is, by definition, too ‘drunk’ to drive. For the government’s plans on protecting women from rape to be effective, perhaps it will specify a breath alcohol level above which consent cannot be deemed to be given and males advised to have a breathalyser to hand and to request an apparently consenting woman to provide a specimen.

Another approach would be to increase the price and diminish the availability of alcohol, which research shows, would reduce the amount consumed per drinking session, and so reduce the number of women putting themselves at risk. While there may still be difficulties implementing the law in such cases, it is good to draw wise attention to this important matter, and we can hope that there will be men who will take note.

Dr. Chick is a Consultant Psychiatrist
at the University of Edinburgh