law pages of Bournemouth and Poole College.
R v Dougal (2005) Swansea Crown Court
[General defences – consent – statutory provision – reverse burden of proof]
D had sexual intercourse with V whilst she was too drunk to give or deny consent.
Held: Section 74 of the Sexual Offences Act 2003 put the burden on the defendant to show that consent had not been refused in circumstances in which it would be deemed that the victim had not the “freedom and capacity” to consent.
Comment: Under the 2003 Act once the prosecution has proved that sexual activity took place in one of the precluded circumstances (e.g. victim detained, asleep or drugged) it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given (a reverse burden of proof).
Prosecuting counsel’s statement in Swansea Crown Court that “drunken consent is still consent” demonstrates that the legislation has not settled the issue of consent laid out in the White Paper because the prosecution was not able to prove that sexual intercourse had taken place because the woman could not remember.
This case occurred in the same week as an Amnesty International survey claims that the true extent of rape exceeds of 50,000 a year, compared with 12,000 reported rapes. The survey also showed that many people believe the victim’s behaviour can make partly to blame.
It is submitted that both the judge and the prosecutor correctly interpreted the current law.