This is a quick follow up to my Sex When Drunk – A Moral Dilemma post.
I’ve just been reading a UK Law Commission report titled “Consent In Sex Offences” (pub: 2000), which I came across while researching the background to the 2003 Sexual Offences Act, Generally, the report is well worth a read, but what has particularly caught my attention is the following section:
There is a possible difficulty where consent is given but then overtaken by incapacity through drink or drugs. For example, at 8 pm P makes it clear that she is looking forward to having intercourse with D that night. By 11 pm she is too drunk to know what she is doing, but D has intercourse with her anyway. Can it be said that she does not (because she cannot) consent to the intercourse at the material time, namely the time of the intercourse? In our view it cannot. Consent is not a state of mind which must invariably exist at the time of the act consented to, but an expression of agreement to that act – the granting of permission for it.
In the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn. There is therefore no conceptual problem with P giving consent well in advance of the act to which she consents, at a time when she has capacity to do so. It would be for the jury to consider in a particular case whether, in all the circumstances, as a matter of fact the consent had been withdrawn.
I’ve got to say I find that position a little… counterintuitive – in particular, the claim that “In the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn.”
Really? As a general rule, surely not. It’s got to be contextual. If I meet somebody at a bar, and I’m flirting with them, and they promise me a “good time” back at their apartment later on (where we both accurately understand this to mean a sexual encounter), and then we carry on drinking for a while before staggering back to their place, whereupon they promptly fall fast asleep in a heap on their couch, I cannot assume that their consent remains effective simply because it hasn’t been withdrawn.