Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["Linda Langford" <>]

Dear Colleagues,
 
This is a very disturbing ruling (in British court, not U.S.)
 
Linda
 
Linda Langford, Sc.D.
Associate Center Director, Higher Education Center for Alcohol and Other Drug 
Abuse and Violence Prevention
www.HigherEdCenter.org
Education Development Center, Inc.
55 Chapel Street, Newton, MA  02458-1060
voice (800) 676-1730 x2719 OR (617) 618-2719 (direct line)
fax (617) 928-1537
 
________________________________

Drunk women can consent to sex, judges rule
By Joshua Rozenberg, Legal Editor
Telegraph (London) 27/03/2007

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".

Benjamin 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.