Laws regarding consensual sex and intoxication

Question

Disclaimer: I do not intend to offend anyone, I just wish to learn more about the laws in this area. Also note I'm only referring to rape when consent has been given, but due to intoxication that consent is ignored in the eyes of the law.

As far as I understand, rape has occurred when either one (or both parties?) did not consent to intercourse. So even if the person did provide verbal consent, but were not in a mental state for that to hold in the eyes of the law (i.e. intoxicated/under the influence of drugs), then consent has not been provided and therefore the intercourse can be regarded as rape (I assume only if they bring the charges to a court of law?).

If both parties are too drunk to consent, and then the female party then claims the incident was rape, then surely the male could do the same? Would each claim then be examined individually i.e. deciding separately whether each person was in fact consenting? If both parties are found to not have consented since they were both too intoxicated, what then?

I tried to research if there were any cases of men who brought a case against a woman for rape due to the man being too intoxicated to consent, but couldn't find anything. Are the laws inherently designed to only protect female parties? It seems odd that there wouldn't be a sizeable number of cases where a sober woman has coitus with an intoxicated man whom would not have consented whilst sober. Then assuming there is trauma behind such coitus for the instance when the female is the intoxicated party, surely then there would be distress caused when the intoxicated party is the male one.

To summarise, why are there very few if any cases of females being accused of raping a male as a result of consent being nullified due to intoxication; and does this reflect a gender-bias in these laws?

Note, I'm new here so if I've been unclear anywhere, please just comment and I'll attempt to clarify.

Answer 1

You give no jurisdiction so I will address it from the one I am most familiar with, New South Wales, Australia.

The relevant law is the Crimes Act 1900 which abolished the common law crime of rape, replacing it with a number of specific offenses: some have lack of consent (and knowledge of that lack by the perpetrator) as an element and some, like child sex offenses, are crimes irrespective of consent.

The relevant provisions regarding consent and intoxication is Section 61HA which says:

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

As you can see, a "substantially intoxicated" person cannot consent to sex and the law makes no distinction between the sexes. Of course, if a person is "substantially intoxicated" is a fact to be determined in the trial. The definition of "substantial intoxication" like the definition of "reasonable doubt" is a matter for each individual jury to determine and apply to the facts of the case.

In a case (really two cases) where both parties were "substantially intoxicated" they would both be guilty of sexual assault.

Across Australian jurisdictions, sexual assault cases have one of the lowest clearance rates of all crimes, largely because the question of lack of consent is difficult to prove beyond a reasonable doubt. Notwithstanding, 98% of convictions are against male offenders (meaning 2% are against female offenders) which flows virtually directly from the arrest statistics. 84% of victims of sexual assault are female (meaning 16% are male) and 60% of victims are children where consent is not a factor.

This doesn't reflect a bias in the legal system as much as a fundamental difference between the sexes: with very few exceptions women are not rapists.

Answer 2

UK-based answer:

Under the Sexual Offences Act 2003, women are incapable of committing the crime of rape (s.1 SOA): The act states that rape requires penetration of the mouth, anus, or vagina with a penis.

(I understand this may be sexist, and I would agree with that, but that's how the law stands.)

If one were to assume that the law changed and both women and men were capable of rape, then we can talk about the issue of consent that you bring up.

With regards to consent under intoxication, R v Bree [2007] is the relevant case. The court of appeal found that consent does indeed require not only a person agreeing to sex, but also having the mental capability to do so. They further stated that while heavy intoxication may end up making it impossible for one to consent, being drunk – even really drunk – doesn't automatically remove one's ability to give consent. (The court seemed to indicate you would have to near black-out drunk to lose your ability to consent, but that is my reading of it, not what they explicitly said.)

Anyway, now that brings us to the question: What if both parties were incapable of giving consent? This would be difficult because for the sex to actually happen at least one party has to instigate matters. I don't think a court would accept an argument from anyone that both parties could have been so drunk as to not be able to consent, yet still had sex.