Alcohol and consent to sex: What does the law say?

AlcoholWritten by Kristina Kothrakis, Partner, Doogue + George Defence Lawyers.

The #MeToo movement has brought with it constructive conversations about sexual consent, many of which talk about the role of alcohol in sexual abuse. But what does the Victorian law say about the relationship between alcohol and consent?

The Elements of Sexual Assault and Rape

Rape and sexual assault are the most common sexual offences brought before Victorian courts, and it is not uncommon that alcohol is involved in some capacity in these offences.

The elements of a sexual assault offence in Victoria are as follows (where ‘A’ is the Accused and ‘B’ is the alleged victim):

  • ‘A’ intentionally touched ‘B’
  • The touching was sexual
  • ‘B’ did not consent to the touch
  • ‘A’ did not reasonably believe that ‘B’ consented.

The elements of a rape offence in Victoria are:

  • ‘A’ sexually penetrated ‘B’
  • ‘B’ did not consent
  • ‘A’ did not reasonably believe that ‘B’ consented.

As you can see, consent is at the heart of both of these offences, which is defined under the Crimes Act 1958 (Vic) as a ‘free agreement’.

Alcohol and Consent

The role of alcohol on the ability of ‘B’ to consent is explicitly dealt with under Section 36 of the Crimes Act 1958 (Vic).

This section lists several circumstances where ‘B’ cannot consent including: when asleep or unconscious, when they submit out of fear and when they are being unlawfully detained among other circumstances.

In regard to alcohol, the section notes that ‘B’ cannot consent if:

  • The person is so affected by alcohol or another drug as to be incapable of consenting to the act; or
  • The person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act.

A mere impairment of judgement or reduction in inhibitions as a result of alcohol consumption will not negate free agreement (R v Wrigley 9/2/1995 CA Vic).

However, where alcohol negates a person’s ability to understand the acts being performed or to freely agree or reject sexual acts – such circumstances are likely to negate consent.

Alcohol and Reasonable Belief of Consent

A person will not be found guilty of a sexual offence if they reasonably believed ‘B’ was consenting at the time.

What constitutes a ‘reasonable belief’ depends on the circumstances, but inadvertence or ‘not bothering to check’ whether someone is consenting will not constitute a reasonable belief under Victorian law.

The role of alcohol on a person’s ‘reasonable belief’ is outlined in Section 36B of the Crimes Act 1958 (Vic), which states:

  • If the intoxication is self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as that person at the relevant time; and
  • If the intoxication is not self-induced, regard must be had to the standard of a reasonable person who is intoxicated to the same extent as that person and who is in the same circumstances as that person at the relevant time.

In other words, if someone has voluntarily consumed alcohol to excess and that has impaired their judgement, the jury is to assess their ‘reasonable belief’ from the perspective of someone who is not intoxicated.

However, if someone has not become intoxicated on purpose (for example, if there drink was spiked) a jury will assess ‘reasonable belief’ from the perspective of their intoxicated state.

Ultimately, the relationship between alcohol and abuse is complex and the blunt instrument of the law can only do so much to address this complexity.

Often cases turn on their own specific facts and so if this is an issue that you need to discuss with a lawyer please contact us.

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