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    if person a and person b are both voluntarlity intoxicated will person a be commiting assault by penetration unders section 2 of the sexual offences act 2003 if he pentrates person b's vagina with his finger without her verbal consent?/

    if he believes via her envouragement that she is happy to be pentrated, will intoxication render his belief invalid?

    thanks
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    No intoxication will not render his belief invalid. If they are both aware of what is happening and the female has not given any inclination that she is unhappy with what is happening then it can be reasonably assumed that she is consenting to his conduct.

    If however she is unconscious or telling him to stop then obviously consent is absent and there could be an offence.
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    (Original post by equinoxsolar)
    if person a and person b are both voluntarlity intoxicated will person a be commiting assault by penetration unders section 2 of the sexual offences act 2003 if he pentrates person b's vagina with his finger without her verbal consent?/

    if he believes via her envouragement that she is happy to be pentrated, will intoxication render his belief invalid?

    thanks
    WRT the consent issue you need to go through the tests under the SOA. First look at the definition of consent under s.74, then s.76, then s.75. Clearly you're mostly looking at (2)(f) - the woman consented therefore there is not a evidential presumption. So, back to s.74. Prima facie there is nothing to make much of a judgement either way - so you need to look at intoxicated SO cases and reason a decision from there.
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    (Original post by squeal)
    No intoxication will not render his belief invalid. If they are both aware of what is happening and the female has not given any inclination that she is unhappy with what is happening then it can be reasonably assumed that she is consenting to his conduct.

    If however she is unconscious or telling him to stop then obviously consent is absent and there could be an offence.
    As the woman is intoxicated this removes her ability to make a fully informed decision and as such any penetration is considered rape by the law. This was brought in about two years ago to stop the amount of rape cases which revolved around, "he raped me!" "she was drunk and said yes!"

    Drunken consent is no longer a valid form of consent.
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    (Original post by Hylean)
    As the woman is intoxicated this removes her ability to make a fully informed decision and as such any penetration is considered rape by the law. This was brought in about two years ago to stop the amount of rape cases which revolved around, "he raped me!" "she was drunk and said yes!"

    Drunken consent is no longer a valid form of consent.
    Have you a source for that? I've forgotten all my criminal law.
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    (Original post by Prudy)
    Have you a source for that? I've forgotten all my criminal law.
    Honestly, I don't off hand and I'm too tired to go hunt for it.

    I don't drink, you see, so I had all my mates telling me bout this new law a while back. It was at most two years ago, but I was informed about it last year as well after I got back from Iceland.
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    (Original post by Hylean)
    As the woman is intoxicated this removes her ability to make a fully informed decision and as such any penetration is considered rape by the law. This was brought in about two years ago to stop the amount of rape cases which revolved around, "he raped me!" "she was drunk and said yes!"

    Drunken consent is no longer a valid form of consent.
    But if the rapist was pissed as well, surely he can't make a fully informed decision either?
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    (Original post by Hylean)
    As the woman is intoxicated this removes her ability to make a fully informed decision and as such any penetration is considered rape by the law. This was brought in about two years ago to stop the amount of rape cases which revolved around, "he raped me!" "she was drunk and said yes!"

    Drunken consent is no longer a valid form of consent.
    If I recall correctly, drunken consent IS consent, but intoxication can be a reason why somebody is incapable of consent. If someone say neither 'yes' or 'no', because they can't because they're too drunk, then having sex with them anyway is rape.
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    There's a consultation paper called "Convicting Rapists and Protecting Victims – Justice for Victims of Rape." But, R v Dougal is still the authority for intoxicated consent. As the law currently stands "drunken consent is still consent;" there is of course the evidential presumption in s.75 but for this to apply V must be unconscious.
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    (Original post by JoeTSR)
    But if the rapist was pissed as well, surely he can't make a fully informed decision either?
    He's not being penetrated.
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    (Original post by Hylean)
    Honestly, I don't off hand and I'm too tired to go hunt for it.

    I don't drink, you see, so I had all my mates telling me bout this new law a while back. It was at most two years ago, but I was informed about it last year as well after I got back from Iceland.
    Just had a look through some of my notes, this will be of interest: R-v-Bree -"Held , allowing the appeal, that on the proper construction of section 74 of the Sexual Offences Act 2003 , if, through drink, the complainant had temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she was not consenting; that, however, where the complainant had voluntarily consumed even substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and in drink agreed to do so, she was consenting; that capacity to consent might evaporate well before a complainant became unconscious, but whether that was so or not was fact-specific and depended on the actual state of mind of the individuals involved; that for those reasons the 2003 Act provided a clear definition of “consent” for the purposes of the offence of rape and, by defining it in section 74 of that Act with reference to “capacity to make that choice”, sufficiently addressed the issue of consent in the context of voluntary consumption of alcohol by the complainant; that, where the complainant had been affected by her own voluntarily induced intoxication, the jury should be given some assistance with the meaning of “capacity” and whether and to what extent they could take that into account in deciding whether she had consented; and that since the jury had been given no or no sufficient directions on the issues of consent and voluntary intoxication, their verdict was unsafe and the conviction would be quashed"

    (As I cheekily suspected) you're friends might have been a bit caught up in the drama that surrounded the gov't consultatoin at the time.
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    (Original post by Hylean)
    As the woman is intoxicated this removes her ability to make a fully informed decision and as such any penetration is considered rape by the law. This was brought in about two years ago to stop the amount of rape cases which revolved around, "he raped me!" "she was drunk and said yes!"

    Drunken consent is no longer a valid form of consent.
    ...
    Honestly, I don't off hand and I'm too tired to go hunt for it.

    I don't drink, you see, so I had all my mates telling me bout this new law a while back. It was at most two years ago, but I was informed about it last year as well after I got back from Iceland
    Admittedly I studied Criminal three years ago, but I seriously doubt that anything has changed since then!

    As Prudy points out, your mates aren't a reliable source. Drunken consent is still consent, and always has been. Moreover, the dude needs to lack a reasonable belief in consent for there to be rape.
 
 
 

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