R v Bree

A drunken person can still consent to sex, but if she has temporarily lost the capacity to choose whether to have sex, she does not consent.

Citation
[2007] EWCA Crim 804, [2008] QB 131
Court
Court of Appeal (Criminal Division)
Year
2007
Subject
Criminal Law
Topic
Sexual offences and consent

Facts

Mr Bree and the complainant, both students, had been drinking heavily together. They went back to her flat, where she was sick, and Mr Bree had sexual intercourse with her. She said that she had not consented, although she had been conscious for most of the time. He said that she had consented. He was convicted of rape after the judge gave the jury no guidance on how to approach consent when the complainant had been drinking.

Legal principle

The Court of Appeal quashed the conviction. Sir Igor Judge P said that a person who has drunk a lot of alcohol may still have the capacity to choose whether to have intercourse, and if she does so, drunken consent is still consent: a drunken consent is still consent. However, if through drink the complainant has temporarily lost her capacity to choose whether to have intercourse, she does not consent. The capacity to consent may evaporate well before she becomes unconscious. The jury should have been directed on these issues.

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