{"id":11142,"date":"2018-11-30T18:58:29","date_gmt":"2018-11-30T18:58:29","guid":{"rendered":"https:\/\/www.nrlawyers.com\/chinese\/?p=11142"},"modified":"2018-11-30T18:58:29","modified_gmt":"2018-11-30T18:58:29","slug":"capacity-to-consent-to-sexual-activity","status":"publish","type":"post","link":"https:\/\/www.nrlawyers.com\/chinese\/capacity-to-consent-to-sexual-activity\/","title":{"rendered":"CAPACITY TO CONSENT TO SEXUAL ACTIVITY"},"content":{"rendered":"

Joseph A. Neuberger, LL.B., LL.M., C.S.
\nNeuberger & Partners LLP<\/h3>\n

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.\u00a0 The thrust of the prosecution case is that as a result of the complainant\u2019s level of intoxication, she or he lacked the capacity to consent to sex. Often during cross-examination the complainant alleges that \u201che knew I was drunk, and I couldn\u2019t\u2019 consent\u201d.\u00a0 The legal error with this is that the law is very clear and well established that a drunken consent is still consent.\u00a0 The cognitive capacity required to consent to sexual activity is a minimal level of cognitive function.\u00a0 Furthermore, careful consideration must be given to the complainant\u2019s prior drinking patterns, and hence their level of tolerance.\u00a0 Even an individual who is significantly intoxicated, is still able to walk, talk and hence consent to sexual activity.\u00a0 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.\u00a0 This is also incorrect.\u00a0 Being drunk does not necessarily render an accused from knowing if someone is consenting or having an honest but mistaken belief in consent.<\/p>\n

At trial, careful attention has to be paid by defence counsel<\/a> 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\u2019s theory.<\/p>\n

One final caution and a common misunderstanding about cases that involves high levels of intoxication is the concept of \u201cblack outs\u201d.\u00a0 When a complainant states in evidence that she or he had a \u201cblack out\u201d that does not in any way translate into the complainant having been \u201cpassed out\u201d.\u00a0 A black out is induced by a high level of intoxication resulting in a loss of memory.\u00a0 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.<\/p>\n

This is a caution to ensure that the consent is well understood to avoid wrongful convictions.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 The thrust of the prosecution case is that as a result of the complainant\u2019s level of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[12],"class_list":["post-11142","post","type-post","status-publish","format-standard","hentry","category-sexual-assault","tag-sexual-assault"],"_links":{"self":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/11142","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/comments?post=11142"}],"version-history":[{"count":0,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/11142\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/media?parent=11142"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/categories?post=11142"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/tags?post=11142"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}