Legal News

A former Lord Advocate in Scotland has called for a change in consent law to cover cases where one party may be too intoxicated to give consent to sexual relations.

Dame Elish Angiolini has suggested that in rape cases, a blood test would show if a victim was able to give consent – and a positive test for alcohol would most likely make it impossible for a defendant to plead not guilty, claiming that consent was given.

Previous attempts to strengthen rape laws include using a “sex breathalyser”, which would show whether a woman had been too drunk to give consent by measuring alcohol levels in her blood.

Dame Elish – the Principal of Oxford University’s St Hugh’s College – is now calling for women’s incapacity to be “embedded in legislation”, the Daily Mail reports.

She said that the Sexual Offences Act should be amended to clarify the law on consent, where alcohol is involved in a rape case.

The move could also open the way for prosecutions of men who have sex with wives or girlfriends when one party is drunk.

In 2007, the Court of Appeal ruled that a person might be capable of consenting to sex, even if they were drunk. As a result, a rape conviction involving 25-year-old software engineer Benjamin Bree – who was convicted of raping a student after a night of heavy drinking – was quashed on appeal.

Lord Judge said that consent could be given, even after “heavy alcohol consumption”. He added that it would be impossible to devise a system that would link a person’s capacity to consent with how much alcohol had been consumed.

“Experience shows that different individuals have a greater or lesser capacity to cope with alcohol – and indeed, the ability of a single individual to do so may vary from day to day,” he told the court.

However, Director of Public Prosecutions Alison Saunders said now said that rape victims should no longer be blamed by society if they are too drunk to consent to sex – or if they “froze” in terror when attacked.

She has issued new guidance to police and prosecutors, as part of a toolkit to bring rape investigations up-to-date.

Dame Elish is suggesting that police should carry out alcohol tests on rape victims to assess whether they were too intoxicated to give consent to sex.

Dame Elish has also made 46 recommendations in her review of the way rape cases are handled in London.

She concluded that police and prosecutors needed to undertake “radical change” in the way they treat victims of rape.

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