A drunken woman can still consent to sex, the Court of Appeal ruled yesterday.
Three senior judges were giving reasons for clearing a 25-year-old man of raping a student, aged 19, after both had been drinking heavily.
Sir Igor Judge, sitting with Lady Justice Hallett and Mrs Justice Gloster, said sex would amount to rape if the complainant had lost her capacity to choose as a result of drink.
"However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape," he said.
The judges could not set a level of alcohol consumption that would negate consent, they explained.
Otherwise, "provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves".
advertisementBenjamin Bree, a university-educated computer software engineer from Southampton "of excellent previous character", was told after an appeal hearing earlier this month that his rape conviction would be quashed. He had served nearly five months of a five-year sentence.
Criticising the way that Judge Jarvis had summed up the case, the Court of Appeal said the jury's verdict could not be regarded as safe.
Yesterday, the court decided not to order a re-trial. Mr Bree, who was in tears after the ruling, was advised by his lawyers not to speak to reporters.
He was convicted at Bournemouth Crown Court last October of raping a university student who shared a flat with his brother Michael, also a student at Bournemouth university. Michael Bree and his girlfriend, Holly, spent an evening in February last year drinking with Mr Bree and the complainant, identified as M.
She drank two pints of cider and, over the evening, between four and six vodkas. Mr Bree, who had been drinking earlier in the day, drank two pints of lager and then he too moved on to vodka and Red Bull.
The girls walked back to her flat, letting themselves in. But both girls were badly affected by drink. Holly was sick in the kitchen and M was sick in the shower. Mr Bree helped her wash her hair.
M's next memory, she said, was finding herself on the bed. Mr Bree was having sex with her. She told the jury that she had not consented.
After Mr Bree was arrested, he appeared shocked and upset. His case was that, although M may have become less inhibited because she was drunk, she was lucid enough to consent to sex and had done so. Mr Bree told the police that she seemed keen on sex.
At the start of the trial, the prosecution claimed that M was so drunk that she was effectively unconscious. In the light of the evidence, the jury was asked instead to conclude that M did not in fact give her consent. Mr Bree's case was that he reasonably believed she had consented.
Sir Igor, president of the Queen's Bench Division, pointed out that neither Mr Bree nor M had acted unlawfully in drinking to excess. "Both were free, if they wished, to have intercourse with each other," he said.
The question was not whether the alcohol made them less inhibited, nor whether they might have regretted what had happened. Nor was it a question of whether they had behaved irresponsibly.
"The essential question for decision is, as it always is, whether the evidence proved that the appellant had sexual intercourse with the complainant without her consent," he said.
Sir Igor said, that "if, through drink or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape.
"However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape." The judges concluded that there was a clear definition of consent.