Let us drink and be fearful ...

Here is a tragic case that made the news yesterday. A young student went to a bar and had a few drinks. She started to feel very unsteady, and one of the workers at the bar asked a security guard to walk her home. He did so. On arriving at her block of flats, he had sex with her in the corridor outside the door to her flat, during which time she kept drifting in and out of consciousness. She later woke up and went into her flat where she fell asleep. She awoke the next day, remembering nothing of what had transpired the night before. As she walked down the corridor, she had a sort of flashback. She still wasn’t sure what had happened to her, so two days later, she contacted her university’s counselling services. The police were then called in. They spoke to the security guard, and it was only then that she knew for a fact that sexual intercourse had taken place. The security guard was charged with rape.

Under United Kingdom law, the prosecution must prove a charge of rape by adducing evidence that the alleged victim had not given consent to sexual intercourse. The security guard’s defence was that she had consented. The student countered that if she had indeed wanted to have sex with him, she would not have done so in the corridor, but rather would have taken the few steps to her room.

When the student gave her testimony in court, she was asked if she remembered consenting. She replied that she did not remember. It was therefore possible, however unlikely, that she might have consented. This gave rise to reasonable doubt, which, under the law, must be resolved in favour of the defendant. The judge directed the jury to find him not guilty.

I can understand the legal reasoning behind the above, but I cannot help feeling that, perhaps, in this case, justice has not manifestly and undoubtedly been seen to be done. I make no comment on the guilt or otherwise of the defendant. The following things concern me, though.

The judge directed the jury that the student, even though drunk, was capable of consent. In his words, ‘drunken consent is still consent.’ I beg to differ.

Section 1 of the Sexual Offences Act 2003 provides that the offence of rape is committed when the defendant has sexual intercourse with the complainant without that person’s consent, and the defendant does not reasonably believe that the complainant consented. I wonder how the security guard could reasonably believe that a woman who was so drunk that she needed the help of a stranger to get back home would be in a position to consent to having sex with that stranger in the corridor outside her flat, where anyone could walk past. You might think that I am expecting too much from the security guard, but I don’t think so. He was in a position of assistance to a vulnerable woman, and at the very least, the very fact of her vulnerability should have played a part in his consideration of whether or not she was consenting.

Section 74 of that Act has this to say about consent: a person consents if he agrees by choice, and has the freedom and capacity to make that choice. I leave you to consider whether, on any consideration of the facts as we know them, that student could be described as having the ‘capacity’ to make the choice of having sexual intercourse.

Section 75(2)(d) of that Act states that consent is invalid ‘if the complainant was asleep or otherwise unconscious at the time of the relevant act’. The student stated in her testimony that she was drifting in and out of consciousness while sexual intercourse was taking place. At one point, she was aware that something was happening, but she could not recall anything the next day.

It appears to me that the judge has not properly considered the legislation. I can understand his point when he says that if the student cannot remember whether or not she consented, the reasonable doubt should be resolved in favour of the defendant. However, given that the legislation provides guidance for determining whether or not she did consent, I wonder why he does not appear to have had recourse to that.

This is very troubling. At the beginning of the week, new research revealed that a third of people in Britain believe a woman is partially or completely to blame for being raped if she has behaved in a flirtatious manner. It also revealed that more than a quarter also believe a woman is at least partly responsible for being raped if she wears sexy or revealing clothing, or is drunk. That report was greeted with outrage. I was not surprised at the results, but I am now more saddened because the facts of the case I related above show that some of these views may be even more entrenched than we think.