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Should the law be doing more to protect drunk women? (R v Bree 2007)
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Full length essay outlining the judgement and subsequent debate around drunken consent in the case of R v Bree 2007.
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Using the judgement discussed in Bree, should the law do more to protect intoxicated womenfrom sexual offenders?
Introduction – outlining the case:
R v Bree (2007) was a controversial rape case, where the defendant (Bree) and the
complainant had both been heaving drinking.
The complainant’s memory of the event was poor, she recalls vomiting and her next
memory is of her and Bree having sexual intercourse.
She has not specifically said no, but had not consented. B contended that he has
reasonably believed she was consenting because she undressed herself and appeared
willing and conscious through the event.
The Crown initially contended that C had been unable to consent as she was unconscious
for much of the event.
Following the delivery of evidence at the trail, the prosecution changed to submit that C,
given her inebriated state, she did not consent to sexual intercourse with B.
The issue of appeal raised by B, was at first instance the Court had not clarified to the jury
that a person may still be capable of consenting even where heavily intoxicated.
Under s.74 of the SOA 2003, one must have the freedom and capacity to make a choice.
Whilst intoxication has the potential to undermine this capacity, simply being intoxicated
does not remove one’s ability to consent.
Sir Igor Judge suggests an understanding of the capacity requirement which is captured by
the phrase ‘a drunken consent is still consent’ as echoing the law regarding the defence of
intoxication which states ‘a drunken intent is still intent.’
Although intoxication does not negate consent conclusively, it can undermine capacity to
consent, and the current law needs to offer more protection to vulnerable people rather
than justifying the socially acceptable and typical behaviour of drunken sex.
Paragraph 1 – the current law, predicaments and issues regarding consent
The emotive nature of sexual offences, as well as the continued low reporting and
conviction rates means that discussions of potential reform are always high on the agenda
The SOA 2003 represented a comprehensive reform of the previous law, broadly
welcomed for its gender-neutrality, broadening of liability and specific labelling.
However, problem areas still remain, with one of the most dominant remaining issues
being voluntary intoxication and consent.
Consent without intoxication in itself is already complicated.
It is difficult to prove lack of consent and in the absence of force there will likely be little
evidence. Consent as a concept is also difficult to define with any degree of objectivity and
consistency.
Intoxication further complicates this issue due to the fact that intoxication is subjective,
and the only level of drunk that can be objectively established in statute in consciousness.
If the complainant is conscious, their level of intoxication may undermine their capacity to
consent, but the point of intoxication where this occurs is difficult to define and prove.
This can result, as it did in the case of Bree, with rulings that lead to much criticism
regarding the laws duty to protect vulnerable people.
Bree is not the only case where intoxicated consent has presented issue.
The case of R v Hysa (2007) involved a heavily intoxicated victim who could not remember
saying no to sexual intercourse. The jury found there was not enough evidence to convict.
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