Vera Baird QC, Labour MP for Redcar and a leading criminal lawyer, called the prosecution's decision "outrageous". She said the law had been changed to provide that no one can consent to sex except by choice, with "the freedom and capacity to make that choice". The Sexual Offences Act 2003 states that someone who is asleep or otherwise unconscious will not be taken as having consented, and in such cases the onus shifts to the accused to raise evidence of consent.Part of the impetus of the Sexual Offences Act is the appalling record of successful rape prosecutions:
The most recent Home Office statistics show that in 2003 an estimated 50,000 women were raped in the UK, although just 11,867 went to the police. Of those cases, 1,649 went to trial but only 629 resulted in successful prosecutions. Some were unsuccessful despite the rapist pleading guilty. If you reported a rape in 2003 you had a 5.3% chance of securing a conviction…Of course, the Act, even if strengthened, doesn’t do British women a damn bit of good if prosecutors and judges aren’t willing to apply it.
Welsh politicians have called for a further tightening of the law in light of the case so that the onus is placed on the accused to prove consent was given.
Plaid Cymru assembly member Leanne Wood, a former chairwoman of Welsh Women's Aid, said: "A woman should be able to get drunk if she wants to without fear of being raped. Men should not be given the impression that it is acceptable to have sex with a woman who is too drunk to consent."
The victim in the aforementioned case was actually passed out when the guard who walked her to her flat had sexual intercourse with her on the floor of the corridor, yet when the prosecution dropped the case, it noted that "drunken consent is still consent.” Charming.
And what, exactly, constitutes content? Simply not saying no? Unfortunately, the “nice guy” who offers to walk an alcohol-impaired girl home and ends up raping her once she’s unconscious is not exactly a rare tale. In my immediate circle of friends, there are two women who have been victimized in exactly that way, waking up to the horrific realization that the man who offered to look after them is having sex with them instead.
[S]ome contributors to website talkboards suggest that women must take responsibility for their actions, including how much they drink. And that to convict a man of rape is wrong when the alleged victim cannot remember whether or not she consented.Same old story. Here’s one problem with that story: It requires all women to modify a legal behavior to accommodate some men who refuse to modify an illegal one. Saying, “There are always going to be some men who are willing to take advantage of an impaired woman” is not sufficient reason to expect only women to monitor their alcohol intake to protect themselves against crime, particularly when the legal system is currently providing rapists with a 94.7% chance of getting away with it. Those are pretty good odds. How about, before the onus is put exclusively on women, undertaking a comprehensive attempt at drastically deincentivizing rape?
Another, unspoken problem with that story: If a young straight man were raped by another man while being passed out drunk, would anyone question whether he’d given consent? In fact, a straight man’s sexual history would likely be used in his defense—he’s had sex with lots of women before; he wouldn’t have consented to this—whereas a woman’s sexual history can be used against her in the same instance.
Perhaps the biggest problem with that story, however, is that women who are assaulted while under the influence of alcohol will just remain unlikely to come forward. It not only leaves them without justice, but also leaves rapists on the loose—resulting in more victims in the future.