According to section 74 of the Sexual Offences Act 2003, consent can be defined as follows:
“A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
But does that person have the capacity to make that choice when they are drunk?
“This is where the problem lies,” explains King, who argues that it is almost “impossible to quantify” whether or not someone is “too drunk” to consent to sex.
Intoxication blurs so many psychological boundaries – from impairing our ability to make judgements we would easily make sober to provoking memory loss and occasionally and creating false memories.
Matthew Claughton, managing director at Olliers Solicitors, said that provided the accused honestly believed there was consent, he is acting within the law.
“If he genuinely believes that the complainant was consenting, he is not guilty even if that belief was mistaken and even if the mistake was due to his intoxication.”
So, should we all abstain from drunken sex so as to avoid the murky waters where consent is concerned, as McCulloch suggests?
“To suggest that men and woman avoid drunken sex is unrealistic,” explains Claughton.
“It is not possible to advise people not to engage in drunken sex because once under the influence of alcohol they will do what they want.
“If I could offer any advice to young men and woman regarding drunk sex and consent, I would suggest that a man proceed with extreme caution if there is a disparity between the level of drunkenness between him and the female, particularly if they have never had sex before and they are not in a relationship.”
Article Appeared @http://www.independent.co.uk/life-style/love-sex/men-avoid-sex-women-drunk-any-alcohol-barrister-says-a7984791.html