Eldritch - again from the bench book, here is a further illustration of an imagined case of 'reasonable belief in consent' by the defendant, that is used to help judges when summing up. It is long - but to explain it fully to the jury, I suppose it has to be
"Illustration – students drinking heavily – some consensual sexual contact – complainant drowsy or worse under the effects of sleep and alcohol – issues of capacity and consent – relevance of the defendant’s own state of intoxication
The prosecution must prove three things:
- The defendant penetrated the vagina of the complainant with his penis;
- The complainant did not consent;
- The defendant did not reasonably believe that the complainant was consenting.
I need to explain how those issues need to be approached in the context of the facts of this case. What is that context? I will remind you of the evidence in more detail later but here is a summary. The complainant and the defendant met in the students’ union bar after they had been playing for their respective teams. They both had a great deal to drink. At the end of the evening the defendant walked the complainant home to her flat. They had coffee together. There was some kissing and fondling between them. The complainant said that she told the defendant she had to go to sleep and lay down on the bed. She recalls nothing else until, in the early hours, she woke to find that she was alone. Her jeans were at the foot of the bed. She had one leg still in her knickers. The complainant has no memory of sexual intercourse taking place, is sure that she would not have consented, but has no awareness whether she consented or not. The defendant accepts that the complainant said she had to go to sleep and lay down on the bed. He lay alongside her. After about an hour he started to fondle the complainant. She made some murmuring noises which he took to be an expression of pleasure. He removed her jeans and partly removed her knickers. Receiving no resistance, which he thought meant that the complainant was consenting, he had sexual intercourse with the complainant to ejaculation. He agreed that no word was spoken between them throughout. Asked why he left the flat, he said that he needed to get back to own place to sleep it off – he had an assignment to prepare the next day.
Penetration
There is no issue that penetration took place. The issues for you to resolve concern consent and the defendant’s reasonable belief in consent.
Consent
The first issue for you to decide is whether the prosecution has proved so that you are sure that the complainant did not give her consent. Consent, you will realise, is a state of mind which can take many forms from willing enthusiasm to reluctant acquiescence. For the purposes of the charge of rape the Act of Parliament is very specific about the meaning of consent. The complainant consented if, and only if, (i)she had the freedom and capacity to make a choice and (ii) she exercised that choice to agree to sexual intercourse. The agreement need not, of course, be given in words provided that the woman was agreeing with her mind.
You may wonder whether the fact that the complainant had been drinking heavily affects either of those questions. There are two ways in which drink can affect the individual depending upon the degree of intoxication. First, it can remove inhibitions. A person may do things when intoxicated which she would not, or be less likely to do, if sober. Second, she may consume so much alcohol that it affects her state of
awareness. You need to reach a conclusion what was the complainant’s state of drunkenness and sleepiness.
Was she just disinhibited, or had the mixture of sleepiness and drunkenness removed her capacity to exercise a choice?
A woman clearly does not have the freedom and capacity to make a choice if she is unconscious through the effects of drink and sleep. There are, of course, various stages of consciousness from wide awake to dim awareness of reality. In a state of dim and drunken awareness you may or may not be in a condition to make choices. You will need to consider the evidence of the complainant’s state and decide these two questions:
Was she in a condition in which she was capable of making any choice, one way or other? If you are sure she was not then she did not consent. If, on the other hand, you conclude that the complainant chose to agree to sexual intercourse, or may have done, then you must find the defendant not guilty.
You reach the stage of considering the defendant’s state of mind only if you are sure the complainant did not consent.
Belief in consent
The next question is whether the defendant honestly believed that the complainant was consenting. If you are sure that the defendant knew either that (i) the complainant was in no condition to make a choice one way or the other or (ii) the complainant had made no choice to agree to sexual intercourse, then you will be sure that the defendant did not honestly believe that the complainant was consenting. If that is your conclusion, your verdict would be guilty. If, on the other hand, you conclude that the defendant did believe, or may have believed, that the complainant was consenting, you need to consider the final question which is whether his belief was reasonable in the circumstances.
Reasonableness of belief and the effect of drink
The defendant had also consumed a great deal of alcohol. However, you need to look at all the circumstances as they would have appeared to the defendant had he been sober. Would or should the defendant have realised that the complainant was at best drowsy and at worst unconscious? If so, would it have been reasonable or unreasonable for the defendant to believe that she was consenting? In considering whether the defendant’s belief was reasonable you should take account of any steps taken by the defendant to ascertain that she was consenting. The defendant does not claim that he checked to see whether the complainant was aware of what was happening. If you are sure that the defendant should have realised that the complainant was in no condition to make a choice, or that the complainant was not agreeing by choice, then his belief was unreasonable and your
verdict would be guilty. But, if you conclude that the defendant’s belief was or may have been reasonable in the circumstances, you must find the defendant not guilty.
I have prepared for you a written Route to Verdict which will enable you, if you follow it, to consider each of these questions in the correct sequence and, by that means, to reach your verdict. Let us read it together.
Illustration – Route to verdict
Please answer Question 1 first and proceed as directed
Question 1
Did the defendant penetrate the vagina of the complainant with his penis?
Admitted. Proceed to question 2
Question 2
Did the complainant consent to the act of penetration? (See Note 1 below)
If you are sure she did not consent, proceed to question 3. If you conclude that the complainant did consent or may have consented, verdict not guilty
Question 3
Did the defendant believe that the complainant was consenting? (See Note 2 below)
If you are sure the defendant did not believe that the complainant was consenting, verdict guilty If you conclude that the defendant did believe or may have believed that the complainant was consenting, proceed to question 4
Question 4
Was the defendant’s belief reasonable in the circumstances? (See Note 3 below)
If you are sure it was not a reasonably held belief, verdict guilty If you conclude that it was or may have been a reasonably held belief, verdict not guilty
Note 1:
The complainant consented only if, while having the freedom and capacity to make the choice, she agreed to sexual intercourse. You will need to consider whether the complainant was in any condition (while under the influence of sleep and alcohol) to make and exercise a choice,and whether she did in fact exercise a choice. If she did agree to sexual intercourse, it was not necessary for her to communicate that agreement to the defendant, provided that in her mind she was agreeing.
If the defendant was aware that the complainant was in no condition to exercise a choice or that she was making no choice, then he did not believe that she was consenting.
Note 3:
When judging whether the defendant’s belief was reasonably held you should consider the circumstances as they would have appeared to the defendant had he been sober. Should the defendant have realised that the complainant was exercising no choice or was in no condition to make a choice whether to have sexual intercourse with him?