Joseph A. Neuberger, LL.B., LL.M., C.S.
Neuberger & Partners LLP
Having defended well over 1000 sexual assault cases, a considerable percentage have involved alleged sexual assaults when both parties have been drinking or under the influence of a drug. The thrust of the prosecution case is that as a result of the complainant’s level of intoxication, she or he lacked the capacity to consent to sex. Often during cross-examination the complainant alleges that “he knew I was drunk, and I couldn’t’ consent”. The legal error with this is that the law is very clear and well established that a drunken consent is still consent. The cognitive capacity required to consent to sexual activity is a minimal level of cognitive function. Furthermore, careful consideration must be given to the complainant’s prior drinking patterns, and hence their level of tolerance. Even an individual who is significantly intoxicated, is still able to walk, talk and hence consent to sexual activity. A related prosecution theory is when the accused is also drunk and the Crown asserts that he or she cannot avail him or herself of mistaken belief in consent due to self-induced intoxication and being willfully blind to the issue of consent. This is also incorrect. Being drunk does not necessarily render an accused from knowing if someone is consenting or having an honest but mistaken belief in consent.
At trial, careful attention has to be paid by defence counsel in eliciting evidence consistent with the complainant having the minimal level of cognitive ability to consent, and this may require calling additional witnesses to establish crucial pieces of evidence to undermine the Crown’s theory.
One final caution and a common misunderstanding about cases that involves high levels of intoxication is the concept of “black outs”. When a complainant states in evidence that she or he had a “black out” that does not in any way translate into the complainant having been “passed out”. A black out is induced by a high level of intoxication resulting in a loss of memory. The complainant during the period of lost memory may well have been walking, talking, joking, and doing many other physical and cognitive acts that did not render the complainant incapable of consenting.
This is a caution to ensure that the consent is well understood to avoid wrongful convictions.