Clubbing/Drinking with the Girls? Think Again

Drunk Consent is Still Valid Consent
By Kevin Koo SK
30.11.2005

Gentlemen,

Does your girlfriend go clubbing “with the girls”? You ought to be guarded. A recent case , Dougal v The Crown, has ruled that consent given to sexual intercourse in a drunken state is still valid consent.

The Facts
Ryairi Dougal, 20 years old, worked as a part-time security guard at Aberystwyth University. There was a party and a 21 year old drama student got drunk. Concerned friends and faculty members asked the accused to walk her back to her hostel.

The 21 year old victim allegedly passed out but came round briefly. She knew “something was happening but I didn't know what”. The next morning she had a flashback and got worried. (Source: guardian.co.uk, 24.11.2005) She recalled hunting for her keys outside the door to her flat and then remembered lying on the floor inside. (Source: spr-consilio.com, 29.11.2005)

Two days later, the worried victim approached a university counsellor. The university called for a police enquiry. The accused, when questioned, said they had consensual sex in her hostel corridor. It was the victim’s first realisation that she had had sex.

Justice Roderick Evans directed the jury that Mr. Dougal was not guilty of rape, “even if you don’t agree”. (source: guardian.co.uk, 24.11.2005) The reason: The victim admitted she was too drunk to remember whether she agreed to intercourse.

Reactions
Caitlin Moran of the Times Online (timesonline.co.uk) on Nov 28, 2005 wrote that the case shews the “madness” in the concept of consent. Her suggestions were:

1. Since one party is too drunk to remember, then the onus of proving consent should rest on the one who was sober; and
2. Asking very drunk people for sex should be a crime (she drew an analogy with statutory rape, where people below the age of consent are deemed unable to give consent).

Kirsty Brimelow, barrister for the accused, said that people should not be worried.
“The law is set down in statute and the judge will consider each case on its own facts so I don't think people have to get very worried that what it means is if you have something to drink, and then you're raped, that you have no defence.” (source: BBC.co.uk, 29.11.2005)

Huw Rees, for the prosecution, said “she could not remember giving consent and that is crucial to our case.” (source: ibid) It was for this reason that the prosecution withdrew the case.

Jennifer Temkin, a law professor at Sussex University, said: “If someone has sex with you when you are unconscious then that is rape. The really difficult area is in between, where the person is so drunk they are not unconscious and are so drunk that they are not really able to consent.” (source: ibid)

Lucy Trevelyan in Consilio (spr-consilio.com, 29.11.2005) wrote that statistics showed rape victims rarely reported rapes, and prosecution of those cases did not always result in convictions.

However, statistics reveal that even if a woman does come forward, the chances of getting her attacker banged to rights are getting slimmer all the time. In 2003 an estimated 50,000 women were raped in the UK, but just 11,867 went to the police. Of those, 1,649 went to trial but only 629 were successfully prosecuted. In 1985 there was a 24 per cent conviction rate in rape trials. By 2003 it had fallen to 5 per cent.

The Independent, in an article titled “Why Do So Many Women Think Rape Is a Woman’s Fault?” (Virginia Ironside, 27.11.2005) reported the results of a recent Amnesty International poll:

1. More than a quarter believed women were responsible if they wore sexy clothing;
2. 28 % thought they were “partially responsible” if they behaved in a flirtatious manner;
3. One in 12 polled thought a woman was wholly responsible if she was known to have many sexual partners;
4. 5 % of women and 3% of men polled believed a woman was “totally responsible” if she was intoxicated.

Beryl Bainbridge, an author, said that if one goes home with a stranger, it is a form of consent. In the same article, Lisa Jardine, another author, points out attempted rape is often preceded by drink-spiking or some other efforts to “incapacitate the victim”. Jeanette Winterson, another author, adds: “The judge who called drunken consent, ‘consent’, is of the ‘punish the woman’ school. Taking advantage of another's incapacity is a low-grade act, whether you rob them or rape them. That's what should be punished, not the victim, however stupidly he or she has behaved. Violence is never acceptable, and rape is violence against women. A short skirt, a Wonderbra, and too much to drink doesn't mean a woman is saying ‘yes’ to every dickhead who fancies her.”


Comment

Caitlin Moran’s suggestions would introduce new difficulties in the law of rape. First, how is one to prove consent? Scuffles and bodily injuries rarely take place when the victim is drunk. Second, how does one measure that a person is “very drunk”? Classifying something as a statutory crime requires considerations of public policy, and must be justified.

Kristy Brimelow’s comment that “you have no defence” is confusing. First she refers to the victim (“you have something to drink, and then you’re raped”) and then she concludes refers to the accused (“you have no defence”). Who is she referring to?

More importantly, while it is true that the cases are all judged based on their individual facts, the reality is that the doctrine of stare decisis (binding judicial precedent) is often relied upon by lawyers. It would not be surprising if the case were to be one day quoted in Malaysian courts by lawyers like Edmund Bon or Dato’ Shafie Abdullah.

I would like to quote Hilary Freeman, “Agony Aunt” for Cosmogirl magazine, who said, regarding the Amnesty International poll: “What message does this send out to young girls - that if they wear a short skirt or have a few drinks they cannot say no to sex? And what about boys? Are they now to think that if they get a girl drunk enough it doesn't matter whether or not she consents?” (Source: The Independent, 27.11.2005)

Ultimately, it is sad that the public’s perception of women being raped was that she was “asking for it”. Being in the wrong place at the wrong time, wearing the wrong kind of clothes and maybe drinking the wrong kind of drink – all these never justify for the act of rape. One should think, “If the victim were my wife, or my sister, or my daugther, would I have felt the same?”

So, Gentlemen, I rest my case. Do take care of your girlfriends. Make sure that you go along with them, or they go not at all.