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Capacity to Consent in Sexual Assault Cases

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Joseph A. Neuberger

Neuberger & Partners LLP

With the increase in prosecutions of sexual assault accusations and recent changes to the rules of evidence at trial it is more important than ever to have legal counsel with experience and extensive knowledge in this area of law.


I have defended numerous cases hinging on a complainant’s capacity to consent at the time of the alleged encounter.  Despite common misperceptions about how intoxicated a person can be while still capable of giving legal consent, the law remains clear – an intoxicated consent is still consent.  The person must have an operating mind, but the cognitive threshold is not high.  I have successfully defended numerous clients, proving that they obtained meaningful consent in cases where alcohol is claimed to have vitiated the ability of the complainant to engage in sexual activity.


I have contributed to the body of case law, establishing the markers for capacity which recognize that disinhibited behaviour does not negate consent or make sexual interactions criminal.


The recent high profile case of R v Al-Rawi drew public criticism and protests when the judge properly stated that “a drunk can consent” but the court of appeal confirmed that the trial judge was correct in law on that point.


The public outrage regarding sexual activity during periods of intoxication is based on misinformed campaigns which rob complainants of their agency and deny their ability to make informed conscious choices, despite evidence of their legal capacity to consent. These public campaigns are causing needless suffering for the accused and for complainants who are encouraged to report in cases which have no prospect of success in court.


My clients have benefitted from our firm’s extensive knowledge and experience in capacity cases, showing that complainants factually had the requisite operating mind to consent. Resolving these cases prior to trial where possible spares both the accused and the complainant from the burden of testifying in cases that should not proceed to court.


With the recent elimination of preliminary hearings, it is important to have a defence lawyer who can skillfully work with the available facts to ensure the best outcome for all participants in the justice system.


Though public pressure has pushed more of these cases to trial, my firm remains a leading defence firm for sexual assault accusations; ensuring that our clients are protected by the existing laws, receiving fair treatment and just verdicts.

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