by BETTINA ARNDT – WHY does our media keep getting the law totally wrong about intoxication and consent – with the result that more young men are finding themselves wrongfully accused of rape?
Late last year, The ABC’s 7.30 Report featured a Tasmanian woman who couldn’t remember that she had sex during a drunken night out with a male friend.
- Women are instigating sexual activity and later claiming to have been too drunk to give consent.
- One complainant got totally pissed nine times and had sex with separate men.
- The judge concluded the case should never have been brought to trial.
The program quoted an “expert” who claimed that if the woman couldn’t remember what happened, that was sexual assault.
Two highly significant NSW cases have called out this wrong thinking, drawing on expert forensic toxicology evidence to explain why you can give consent while intoxicated. Just because you can’t remember doesn’t mean you didn’t consent to sex, say these judges.
CONSENT
Confusion arises over the use of the term “blackout” which can mean loss of consciousness, but also a situation where a person is conscious, interacting with the environment but the brain is not creating long-term memories of the events. Here a person may give enthusiastic consent and not remember it.
In R v Smith a woman had a regular sexual buddy, despite having acquired a new boyfriend.
On the occasion in question, the two met up for a drinking session before going back to his home. The next thing she remembers is waking up in his bed around 9 that night.
According to the judge, Peter Whitford, the accused gave a “reasonably detailed, coherent and credible account” of their sexual encounter, which included her pushing his head down towards her crutch which led to oral sex. His text messages to her the next day expressed concern that she had left so suddenly.
Experts on forensic toxicology, called by both the defence and the prosecutor, agreed that she could have given consent despite her blackout. The expert for the prosecution, explained that despite the loss of memory people experiencing blackouts “can have conversations, they can drive, they are capable of responding, as though perfectly normally, to external stimuli”.
The expert for the defence, reached similar conclusions: “when a drinker is experiencing a blackout, and not laying down a memory, they may still nonetheless be well capable of functioning in the world. They can carry out everyday tasks, they can engage with people socially, including sexually.”
The complainant in R v Smith never said that she didn’t give consent – yet the prosecutors decided to still give it a go. Whitford was scathing about this decision and awarded costs against the Crown.
ASSAULT
Remarkably similar facts played out in R v Martinez, another case which made headlines last year, where the complainant nine times got totally pissed and had sex with separate men, only to turn around and report them for sexual assault, claiming she’d been too drunk to give consent.
Here too the complainant instigated the sexual activity but later claimed to have had a blackout. Here too the expert witness pointed out she could have consented, despite her level of intoxication and subsequent memory loss.
And here too, the jury found the accused not guilty and the judge concluded the case should never have been brought to trial.
The law is clear – intoxicated women may be able to give consent to sex, even if later they can’t remember what happened.
It’s a pity that Michael Lee, the judge who made the recent decision, now under appeal, in the Bruce Lehrmann defamation case, chose to muddy the waters with very confusing pronouncements on intoxication and consent.
Even though Lehrmann claimed no sex took place, Justice Lee did not believe him, and the case then turned upon whether the sex was consensual.
Lee believed Higgins’ evidence that, at the time Lehrmann started having sex with her, she was unaware of her surroundings – despite the video footage of her chatting to security guards and then tripping along the parliamentary corridor which was surely evidence that she was “well capable of functioning in the world” less than half an hour before she claimed she turned into “a log”.
Lee’s discussion of Higgins’ alleged log-like state includes references to “tonic immobility” – a “freeze” response often promoted in the feminist literature on rape but actually based on extremely dubious and flawed science.
Then there was Higgins’ equivocal message to her ex-boyfriend in the days after the alleged offence, saying “I was barely lucid. I really don’t feel like it was consensual at all”. Somehow Lee finds this supports the Higgins’ rape story.
It is most unfortunate this hugely publicised verdict has simply added to the public confusion around intoxication and consent. Just one more damaging legacy from the sorry Brittany Higgins saga.PC
The truth is, if you have casual sex with a power hungry power girl, expect to be spat out and destroyed at her convenience. There is nothing noble about feminist woman. #NeverBelieveFeminists