The Sexual Offences Act 2003: Intoxicated consent and drug assisted rape revisited

In a previous article in this journal, the problems encountered by the then-current sexual offences law in addressing the issue of intoxicated consent to intercourse were explored.(1) The prototypical understanding of "drug assisted rape" was deconstructed and the conduct involved was situated alongside myriad socio-sexual interactions involving intoxicants. It was suggested that the law, having struggled to deal with the validity of intoxicated sexual consent in such contexts, had adopted an extreme (and unsatisfactory) position based upon insentience. This article examines the extent to which the Sexual Offences Act 2003 has overcome these problems. Focusing in particular on the definition of consent(2) and the evidential presumptions pertaining to its application,(3) the following discussion highlights the ways in which, despite its averred aim to increase predictability and clarity, the Sexual Offences Act 2003 leaves much scope for interpretation. As will become apparent, in the specific context of intoxicated sexual consent, the way in which that interpretation is undertaken will have significant implications for our understanding of the boundaries of drug assisted rape and our treatment of the interaction between intoxicants and sexual intercourse.