Yet assumption of male proposition. This therefore would have

Yet
proponents of the act insist that there is now a greater guidance on the issue
of consent with regards to an increased understanding of sexuality in that
intercourse should be considered as a union between two parties and not an
assumption of male proposition. This therefore would have a knock on effect of
sending out important social signals relating to the boundaries of acceptable
sexual behaviour.1
Yet, if such an improved direction on the issue of consent does exist within the
act, why is it necessary for the courts to look to common law for answers
regarding capacity in which the complainant had the awareness, understanding
and knowledge to comprehend the sexual act imposed upon them?2

As
no comprehensive guidance is included within section 74 with regards to the
interpretation of capacity, Wallerstein urges legislative to intervene to offer
more specific understanding, especially with regards to voluntary intoxication.3

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R
v Bree 2007 demonstrates the requirement for the law to be clear to ensure
individuals have the freedom and capacity to consent to sexual intercourse when
they have genuinely been affected by voluntary intoxication.4
As a result, Elvin suggests that this case has not increased consistency in
this area of law because of evidential problems and that there will always be
examples of human behaviour that are inappropriate for thorough legislative
structures.5

 This is further shown in H.R v Dougal 2005
where it can be questioned whether the act offers sufficient protection to people
at times of vulnerability.6
Section 75 (2) provides protection for complainants who have been intoxicated
against their will but this section is narrow as to relates only to
circumstances where the victim’s intoxication is blameless; often when a
substance has been administered to them.7
This consequently leads a lack of clarity whereby not all cases that should have
gone to the jury have done so and additionally there exists no explanation as
to why the administration of a stupefying substance, which is not adequately
defined in the act, represents a rebuttable presumption and not an irrefutable
presumption.8

It
could be said that a complainant who drinks reasonably are left unprotected by
the act whereas the complainant who drinks themselves into oblivion gains
protection from the sexual offences act.9

The
CPS urges advocates to remind the trial judge of the need to assist the jury
with the meaning of capacity whereby questions could be asked as to whether the
complainant made the choice freely and was not constrained in any way but this
only serves to further highlight the lack of inclusive guidance contained
within the act.10

The
question remains: how can a jury ever be satisfied beyond reasonable doubt when
a complainant’s memories are disjointed due to intoxication?11

Unfortunately
the act with regards to consent and capacity appears to raise more questions
than it is able to answer.12

It
is also concerning that the circumstances outlined in section 75 are exhaustive
but have omitted occasions of dubious consent, such as when the complainant may
have been subjected to other forms of threats.13

Section
75 and section 76 lack significant addition to the previous law and concern can
be found with regards to the practical application of the circumstances found
within these sections as it is not obvious that the provision and the
presumption they give rise to will achieve much result on the outcome of the
cases.14

Further,
why is section 76 is conclusive but not section 75? Obtaining compliance by
employing threats of violence is no less abhorrent than doing so by deception
yet the latter is beyond question and the former is a rebuttable presumption.15
Temkin and Ashworth insist the categorisation of circumstances are at fault
within the act. In fact, the restrictive list of section 76 could be
incompatible with ECHR article 6(2) of the presumption of innocence and also
could be easy to rebut and begs the question: what counts as reasonable
consent?16

This
isn’t helped by section 76 only permitting deception with regards to a person
known to the complainant, omitting deception as to essential attributes such as
someone pretending to be a doctor or a person in authority such as a police
officer.17

A
conclusion can only be created that suggests consent provisions within the act
are not completely comprehensive in providing protection.18
Added to this, there are inherent complexities attached to the concepts of
freedom, capacity and reasonableness.19

The
act only offers protection where a complainant is involuntarily intoxicated or
so drunk as rendered unconscious and as a result a clearer definition of
capacity is required as well as a more wide-ranging list of circumstances in
which to direct the jury as nearly all the examples of scenarios contained
within the act relating to consent can be rebutted.20

Sadly
the act has accomplished the real possibility of jury bias and while it sought
to demonstrate changes in social attitudes, it has only managed to naively add
to the stereotypical approaches that still exist with regards to sexual
relationships due to its obvious limitations.21

1 J. Spencer, ‘The Sexual Offences Act 2003, ‘Child and
Family Offences’ (2004) Criminal Law
Review 347 – 360

2 X City Council v MB 2007 FCR
371.

3 S.A Wallerstein, ‘Drunken consent is still consent or is it? A critical
analysis of the law on a drunken consent following Bree’ (2004) Journal of Criminal Law 73 318.

4 R v Bree 2007 EWCA Crim 256.

5
J, Elvin,’The
Concept of Consent under the Sexual Offences Act’ (2003) 72 Journal of Criminal Law,519.

6 R v Dougal, unreported, November 2005 Swansea Crown Court.

7
Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (Hart
Publishing 2008).

8J,Stone,
‘Rape, Consent and intoxication: A Legal Practitioner’s Perspective'(2013) Alcohol and Alcoholism 1-2.

9
S.A Wallerstein, ‘Drunken consent is still
consent or is it? A critical analysis of the law on a drunken consent following
Bree’ (2004) Journal of Criminal Law 73
318.

10
Jennifer Temkin,
Rape and the Legal Process (OUP
2006).

11 R v
Hysa 2007 EWCA Crim
2056

12
J. Spencer, ‘The Sexual Offences Act 2003,
‘Child and Family Offences’ (2004) Criminal
Law Review 347 – 360

13
Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (Hart
Publishing 2008).

14
J. Herring, ‘Human rights and rape: a reply to Hyman Gross’ (2007) Criminal Law Review,
228-231.

15S.J
Lea, U
Lanvers and S Shaw ‘Attrition in rape cases; developing a profile and
identifying relevant factors'(2003) British
Journal of Criminology, 43, 583-599. 

16
J.Temkin & A.Ashworth, ‘The Sexual Offences
Act 2003: Rape, Sexual Assault and the Problems of Consent’ (2004) Criminal Law Review 328-346, at 336-7.

17
Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (Hart
Publishing 2008).

18 Janet Loveless, Criminal
Law, Text, Cases and Materials (OUP 2008).

19 Jennifer Temkin, Rape
and the Legal Process (OUP 2006).

20
J,Stone, ‘Rape, Consent and intoxication: A Legal Practitioner’s
Perspective'(2013) Alcohol and Alcoholism
1-2.

21
J. Herring, ‘Human rights and rape: a reply to Hyman Gross’ (2007) Criminal Law Review,
228-231.