In times gone by, the offence of rape was defined as 'the carnal knowledge of a woman forcibly and against her will'.1 The offence was initially silent on the issue of mens rea and it was not until DPP v Morgan2 that its inclusion and the effect that this had on mistakes about consent was established. The House of Lords held that a trust in consent, even if irrational, would go against mens rea provided that the trust was honest. Although subject to a measure of criticism, such as that it represented a 'rapist's charter',3 this is still the approach to the offence in the common law jurisdictions. Rape requires evidence of the physical essentials of penetration without consent and also the mental aspect that the offender not only intended to penetrate but knew the victim was not consenting or was careless as to whether the victim was consenting.4 carelessness is generally understood subjectively to mean that the offender was conscious that it was probable that the victim was not consenting but continued in any case.5 The requirements of force and lack of will were replaced by the perception of consent in the mid 19th century. The turning point was the case of R v Camplin,6 where a woman was penetrated after being made drunk by the accused. Faced with no indication of force against the victim, the House of Lords decided that there could be rape if the penetration took place without the consent and against the will of the victim. In focusing on consent rather than force it has been argued that the offence does not capture the real nature of rape.7 Feminists have articulated several apprehensions about whether the focus on consent sufficiently protects women.8 Firstly, an objectionable consequence of making the consent of the victim the central question has been that criminal trials tend to focus on the conduct and sexual history of the victim rather than on the conduct of the accused.9 A second criticism is that 'the everyday use of the term "consent" does not satisfactorily distinguish between cases in which the victim submits out of fear and cases in which she is prepared to engage in sexual intercourse'.10 Finally, it has been argued that the theory of consent cannot be determined reasonably while jurors and judges rely on their predictable views about sexual roles in their assessment of consent such as, put bluntly, 'yes' means 'no'; that women fantasize about being raped; or that women could resist if they really wanted to.11 The existing situation where there is no statutory definition of consent to any sexual act which might otherwise be a crime is far from perfect, leading to a lack of lucidity for the complainant, the accused and the Jury. The positive impact of a lucid definition should also be felt outside the courtroom, preventing at least some acts of sexual violence. It would seem best that an alternative expanded and more inclusive definition of consent should have as its primary focus the conduct of the accused rather than that of the complainant, as far as possible, with the aim of avoiding protracted, hostile and thorough cross-examination of the complainant on matters which are often of doubtful bearing to any real issues in the case. Of course, fairness to the accused is a crucial principle. However, no less imperative is the framing of the law to avoid unnecessary distress of survivors of sexual violence by cross examination, as there can be no doubt that fear of such a torment operates to increase the erosion rate. Now it is time to enact a new expanded comprehensive definition of consent which incorporates the benefits and avoids some pitfalls of the definition used in the UK Sexual Offences Act 2003 12. Some legal experts have identified, that the UK definition does not give any guidance as to whether the complainant must communicate consent by words or action 13. However, it appears from the subsequent cases that the most important practical issue has been "capacity". The England and Wales legislation does not contain any definition of capacity itself, and its list of situations where there is presumed to be no consent, at sections 75 and 76 of the SOA 2003, does not expressly include the situation where there is no capacity to consent because of self-induced intoxication of the complainant which falls short of unconsciousness. It is fair to say that the UK Government examined this gap in the law in the light of the decision of the Court of Appeal in R v Bree  EWCA 256, in which the Court interpreted the capacity to consent as something which "may evaporate well before a complainant becomes unconscious", and explained 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 consentingÃ¢â‚¬Â¦". However, the Court also made clear that the complainant may still retain the capacity to consent (or not) even if she has had quite a lot to drink, which means that essentially each case will turn on its own facts. The UK Government decided not to change the law following this decision. It would seem best, given that this is a situation which arises very often, and which gives rise to misuse, that a broad definition of consent should include provision for the circumstances where the complainant's consent is compromised by her voluntary intoxication. After all, the drink driving laws presume that after consumption of a very modest quantity of alcohol, our capacity to control a car safely is seriously affected. Of course, this would mean that the behavior of the complainant would still be under inquiry. Some guidance as to what ought to be incorporated in such an extended definition will be found at Sections 75 of the UK SOA 2003 (evidential presumptions about consent) and Section 76 ibid. (conclusive presumptions about consent), which taken jointly provide a list of situations in which the deficiency of consent may be assumed, and except for the two rare situations contained in Section 76, further provide that it is open to the accused to bring in sufficient evidence to show that there is an issue as to whether the complainant consented, in relation to the particular state of affairs. This list of situations does NOT cover the situation where the complainant's capacity to consent is impaired by self-induced intoxication, but he/she is not "asleep or otherwise unconscious" 14. Allowing sexual activity does not amount to consent in some situation like when she does not protest and/or offer physical resistance to the activity or if the activity takes place while she is asleep or is unconscious. Similar situation may occur when she is affected by drugs or alcohol to such an extent that she is in no position to consent or refuse. It is not relevant whether or not she took the drug or alcohol voluntarily or involuntarily. Another condition could be when the person is so affected by a mental or physical condition or impairment that she is in no position to consent or to refuse consent. Similarly, it is not consent to sexual activity if she allows it because she is mistaken about the person's identity or she is mistaken about the nature and quality of the activity. A consent expressed by another person on behalf of the complainant cannot be considered a valid consent or if another person in a position of power, trust or authority incites her to engage in that activity. A complainant cannot express her consent by a lack of agreement to engage in that activity or having first consented, she expresses by words or conduct a lack of agreement to continue to engage in such activity.
The Sexual Offences Act 2003 and thereafter - Demand for change of Law The Government has already made a number of changes to the law on rape and the way the police and Crown Prosecution Service work on these cases. These changes include strengthening the law on rape through the Sexual Offences Act 2003 and developing a network of sexual assault referral centres that provide specialised, dedicated help and support to victims. The pioneer support for a change came from non-government groups and victim and survivor support groups, whilst members of the judiciary and legal profession were less persuaded of the need for change. Moreover, around a third of the respondents who believed that the law should be changed favored a further evidential presumption to cover intoxication by drink and drugs, often citing the recommendation that was made in the report to Home Office's review of the law on sexual offences, "Setting the Boundaries", which proposed an evidential presumption that read: "Where a person asleep, unconscious or too affected by alcohol or drugs to give free agreement". A number of respondents, particularly victim and survivor organizations, further argued that the law as it currently existed was inherently contradictory on the subject of intoxication. The respondents argued that where intoxication fell short of unconsciousness and was therefore covered by section 75(d) of the Sexual Offences Act 2003, it was both presumed and not presumed to invalidate consent depending on whether the intoxicating substance was administered surreptitiously or consumed voluntarily. It was suggested that the distinction between those intoxicated having had their drink 'spiked' (or been drugged in some other way) and those intoxicated apparently of their own volition was not as clear cut as the legislation allowed for. There were cases in which offenders deliberately facilitated the intoxication of vulnerable victims in order to commit an offence. One example was where an uncle facilitated the intoxication of a younger niece in order to commit a sexual offence. Even in situations where the offender had not been responsible for inducing intoxication there was a risk that some men can seek to take advantage of the fact that women are drunk and therefore have less capacity to resist pressure or coercion. Consequently, it was argued that the law should be changed so that it made no distinction between voluntary and involuntary intoxication if the ultimate effect was a lack of capacity to consent. The proceedings in the case of R v Dougal 15 were widely cited as an example of the difficulties caused in applying the current law to cases involving voluntary intoxication and as an argument in favour of adopting a change in the legislation. This case collapsed when the prosecuting counsel took the view that the prosecution were unable to prove that the complainant, because of her level of intoxication, had not given consent and informed the judge that he did not propose to proceed further. The judge agreed and directed the jury to enter a 'not guilty' verdict. It was argued, that the case should have been proceeded with and the issue of the victim's capacity to consent put to the jury. It was argued that a change in the law would allow a similar case to proceed in the future and would provide assistance to the jury in considering the issue of consent. While the relationship between capacity and intoxication was the most prominent issue, responses from police and prosecution representatives and children's organizations identified other factors that should be taken into account when considering an individual's capacity to consent. These included mental health, domestic violence and the exploitation of victims made vulnerable by their circumstances, for example sex workers. There were differing opinions on whether a change in the law would be necessary to allow the effects of such factors to be considered in relation to consent. Organizations with a specific interest in children supported a change to the law which would take account of the particular vulnerability of children and the circumstances in which they can be exploited in order to commit sex offences. It was noted that alcohol can often be used by offenders to make it easier to commit an offence. However, it was also pointed out that alcohol is frequently consumed voluntarily by teenagers before engaging in consensual sex and that it was important that intoxication should not be the only factor taken into account when considering the capacity of those under 16 to consent as this could lead to inappropriate prosecutions. The opinion that the law did not need to be changed was most commonly held by members of the legal profession, the judiciary and law enforcement agencies. Some argued that the law had only been in force for a relatively brief period and that any meaningful assessment of the Act's provisions was therefore premature. Continual change, others argued, rather than bringing clarity, would only serve to cause further confusion. Opponents of change argued, it would be wrong to seek to change the legislation simply because of the outcome of the case of R v Dougal. They took the view that the Sexual Offences Act 2003 had "provided a welcome modification to the law on consent", which had improved the law because juries were now required to consider what steps the accused had taken to establish whether or not the complainant genuinely consented. Although there may now be a focus less on whether or not consent was given but rather on whether the complainant had the capacity to give consent, this did not challenge the adequacy of the law as it was currently framed. Those who did not consider that the law needed changing argued that it was already the case that a jury could ask themselves whether the complainant was in a fit state to give free and informed consent, especially if they had been drinking heavily. It was suggested by judicial respondents that R v Dougal had been an exceptional case and that in most similar cases juries have been properly directed that lack of capacity includes incapacity through excessive consumption of alcohol or drugs. There was concern for the broader implications of a change in the law. It was suggested that establishing a link between intoxication and a capacity to consent could result in, and according to some should entitle, a defendant to argue that he was too drunk to assess whether consent had been given. It was also argued that the effect of intoxication on a person's ability to make decisions could not be used as a defence to other offences, for example assault, and so should not be relevant to the capacity to consent in rape cases. However, it was also argued that these two situations were not analogous because victims were not on trial. Section 74 of the Sexual Offences Act 2003 refers to 'freedom and capacity' and argued that there was a distinction between these two concepts. It was argued that capacity to consent was relevant to children and individuals with mental disorders impeding choice but not to adults who had become intoxicated. It was suggested that equating adults with children in this way was a step backwards.
Should there be a statutory definition of capacity This change in law by way of inclusion of a definition of capacity would bring a clarity to proceedings and ensure that juries would consider the complainant's circumstances, including any effect that alcohol or other substances may have had on their ability and freedom to choose. Advocates of this definition consider that it is clear and easy to understand and would cover the circumstances where a complainant was so drunk - but not unconscious - as to not know what was happening or unable to say no. A number of those who supported a further evidential presumption based on alcohol consumption suggested that this might be the statutory definition of capacity that was needed. Most commonly, the evidential presumption that was proposed was the one that appeared in "Setting the Boundaries". Such an evidential presumption, it was argued would allow the case to be put to the jury, even where the complainant could not remember whether she consented or not. It would, of course, remain open to the defendant to say that the complainant did indeed consent and for the jury to believe him or, at least, give him the benefit of the doubt.