When Mary Jane Mowat remarked recently that rape conviction statistics would not improve ‘until women stop getting so drunk,’ the retired Crown Court judge knew there would be a row. It followed.
The judge, knowing that only 60 per cent of rape charges that reach court end in conviction, was making a narrow point. There are big evidential difficulties in pitting the claimed recollection of someone who says she was too drunk to know what she was doing against the claimed recollection of someone who plainly wasn’t.
But the row spread wider, as it keeps doing, into the moral status of taking advantage of an inebriated woman. Rape need not involve forcing yourself on somebody, but can include other circumstances where there is no true consent: the alleged victim could have been asleep, unconscious or under a misapprehension as to the accused’s identity.
For a conviction for rape to succeed in a case where extreme drunkenness is involved, it is not necessary to prove that the alleged victim was insensible — i.e. comatose; only that she (or he) was so drunk that her (or his) failure physically or verbally to resist could not amount to true consent.
The relationship between alcohol and sexual consent is a vast and tangled question. Though the criminal offence has to be confined within the boundaries of a clear category, sexual consent can be resistant to sharp definition. The word ‘consent’, I’d submit, need not in its ordinary usage describe an all-or-nothing state of mind, wholly present or entirely absent. The law, however, treats it thus. That is the root of the problem.
A key effect of alcohol, and one of the reasons people take the drug and offer it, is that it relaxes us, lowers our guard and reduces inhibitions.
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