LLM Dissertation Plan
• Your research question(s) – what is it that you want to discover from your dissertation?;
• Research question: Impact of the law on intoxication on the potential victim or the blameless accused
Through an evaluation of cases, articles and other materials relating to the area of law on intoxication and consent in sexual offences, I intend to explore the extent to which the Sexual Offences Act 2003 has helped potential victims and blameless accused in the past. I also would like to discover the extent of the implementation of the proposals made in the Home Office command paper titled ‘Home Office, Setting the Boundaries: Reforming the Law on Sexual Offences (2000)’ which deals with the shortfalls of the Sexual Offences Act 2003. Having assessed everything, I also seek to make my own proposals of a reform of the law using my conclusions from the research.
• An introduction to the subject area, setting your research question in context;
a) Protects neither the potential victim nor the blameless accused? A critical analysis of the law on intoxication and consent in sexual offences.
b) Impact of the law on intoxication on the potential victim or the blameless accused
Research shows that 81% of the rape accusations made by university students, the incident is said to have occurred while both parties were voluntarily intoxicated. This goes to show that drunken sexual intercourse is common and often, it is not only the victim who will intoxicated but the accused too. To be found guilty of rape, the accused must have used his penis to penetrate the complainant’s vagina, anus or mouth , without the complainant’s consent and with no reasonable belief from the accused that the complainant consented. Whether a belief is reasonable is determined by having regard to all the circumstances including any steps the accused took to ensure the claimant consented. While it has been acknowledged that a person in a state of drunken awareness may be unable to make choices expecting the mutually intoxicated accused accurately assess the legal validity of the consent provided by the claimant seems irrational.
I therefore evaluate the extent to which the current law has helped people in these situations and ultimately propose reforms.
• A brief literature review highlighting and evaluating the key sources, both primary and secondary, and the extent to which they evidence the relevance of your research question;
Literature Review
The Current Law
Section 74 and 75 of the Sexual Offences Act 2003 are the leading provisions for the law on intoxication and consent. Section 74 states that a person is deemed to have consented if they ‘agree by choice and has the freedom and capacity to make that choice.’ On the other hand, while section 75(2)(f) creates an evidential presumption of the lack of consent where the victim was involuntarily intoxicated by means of having been administered a substance that is capable of causing or causes them to be ‘stupefied’ or overpowered’ without their consent; section 75(2)(d) creates the presumption for when the victim was unconscious or asleep. This could be rebutted if the accused can provide sufficient evidence that the claimant may have consented and that he had a reasonable belief that the claimant consented.
Law relating to capacity to consent (in relation to intoxication)
In Bree the court stated that ‘where the complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and while drunk decided to do so, she was consenting.’ However, the complainant ought to have capacity to make the choice and because the law does not provide the definition of capacity, it is left to the jury to facilitate a meaning based on the circumstances of the case. In the case of a claimant who did not lose consciousness when she engaged in intercourse, this creates a dilemma for the prosecution to pinpoint the moment in which the claimant’s capacity evaporated so as to vitiate the consent the defendant may be claiming to have been given. Consequently, the jury may be reluctant to find that consent was not given in cases where the complainant was drunk and conscious, but not physically sick or violently vomiting (actions which jurors are likely to believe to suggest lack of capacity to consent). The Act’s ability to protect victims is therefore undermined as such an approach hinders those who have been sexually offended from bringing their cases forward due to the fear that the jury may deem them to have consented unless there was tangible evidence that they lacked capacity to do so.
In cases such as H where the victim was intoxicated and had lapses of memory loss of the events that transpired due to that intoxication, while the accused was sober, the court rectified the position that capacity to consent can ‘evaporate well before the victim became unconscious.’
Reasonable belief in consent and discussion of the sexual offences
To be found guilty of rape, the accused must have used his penis to penetrate the complainant’s vagina, anus or mouth , without the complainant’s consent and with no reasonable belief from the accused that the complainant consented. Whether a belief is reasonable is determined by having regard to all the circumstances including any steps the accused took to ensure the claimant consented.
Conclusion
Having made use of the Sexual Offences Act 2003, the Home Office, Setting the Boundaries: Reforming the Law on Sexual Offences (2000), cases such as R v Bree and articles from authors such as Temkin and Ashworth cited above, I intend to criticise the fact that the 2003 Act protects neither the victim nor the blameless accused. I will highlight its failure to have a threshold to help the jury and the court establish the moment a drunk person loss capacity as the main reason for this and also propose the need for a legislative directive to deal with this problem.
• An outline of the methodology you plan to deploy in researching and writing your assessed piece of work;
The methodology I will use in conducing this study will be through using primary and secondary sources of data such as government command papers, reports of parliament, Acts and Cases. The information will be gathered using the library search engine and textbooks.
• An indicative structure:
a) Dissertation title
b) Contents – list of subheadings
c) Introduction – containing issues addressed in the dissertation, a literature review and description of contribution my work makes to the impact of the law on intoxication and consent in sexual offences
d) Body of the dissertation consisting of subheadings discussing different matters of the title
e) Summary and conclusions
f) Bibliography
• An indicative schedule or timeline of the completion of your work.
Timeline
1 August – First meeting with supervisor
12 August 2022 – must have done part (a) – (c) of the structure
25 August – Began body of the dissertation and had meeting with supervisor to discuss it
30 August – polishing up body of dissertation and another meeting with supervisor
10 September – preparing summary and conclusions
