In previous articles, we explained the meaning of consent as well as sexual offences. Based on a recent case in Singapore, we will explore whether consent also applies if the victim of an alleged sexual offence was drunk.
In his oral judgement on the case, the judge noted from a previous apex court decision that the mere fact that the alleged victim was intoxicated was not enough to establish a lack of capacity for consent.
Definition of sexual consent
Consent is the voluntary agreement to engage in sexual activity. It must be freely and actively given and can be withdrawn at any time. Consent may be given by words or actions (or a combination of both).
Does consent apply when one of the parties is drunk or under the influence?
The common understanding of consent is that it must be given by someone who is capable of understanding the act and its consequences, which means being able to make decisions about what they want to do. A person who is extremely drunk may be impaired in judgement and may not remember what’s happening. If a person attempts sexual activity with someone who’s drunk or drugged—without first obtaining explicit verbal consent—then this could result in rape charges.
Highlights from the case
“She appeared to be inhibited and said that she did not remember the sexual encounters due to an alcoholic blackout, but it did not mean that she was not able to perform cognitive functions,” said the judge.
The judgement referred to expert evidence estimating that she would have had a blood alcohol level of between 164 and 182mg/100ml around 3am to 4am when the incidents took place. By comparison, the legal limit for driving is 80mg/100ml.
He added that, based on expert opinion, “alcohol-induced blackout merely means that alcohol has affected the ability of the brain to encode memories, and that a person experiencing alcohol-induced blackout may still retain the ability to understand the nature and consequences of their actions.”
The judge added that the “ultimate inquiry” was not whether she was intoxicated but if she had lost the capacity to “understand and decide”. He provided several instances from the evening of the incident to illustrate this point.
One was when she repeatedly rejected her friend’s offer at the bar to drive her home, saying that it was to avoid worrying her friend, which showed that she could look beyond her immediate needs and consider her friend’s. Because of this and other factors, the prosecution failed to prove beyond a reasonable doubt that she lacked the capacity to consent, he added.
The importance of objective evidence
There are two main types of evidence: objective and subjective. Objective evidence is the type that can be measured or observed by a third party. This can include, but is not limited to:
- Text messages between you and your partner;
- Photos or videos documenting the sexual activity in question (if it’s consensual);
- A witness who saw you giving consent
One crucial aspect of this case that led to its clear resolution was the existence of “objective evidence” in the form of audio recordings from the in-car camera.
The judge said that the accused’s account was materially consistent with the first statement he gave to police after the arrest, and was also corroborated by the audio recordings. This objective evidence is very important as it gives the court “a clearer glimpse into the demeanour and behaviour of the complainant”. Without such evidence, establishing the facts of the case will become more complex.
Consent, like any other element of a sexual offence, is not a binary concept. There is no clear line between drunk and sober, and the law requires that all of the facts be considered in each case to determine whether consent was given. If you’re currently in a situation that mirrors this article, then it’s best for you to speak to a lawyer who can help guide you.
Engaging a Lawyer
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years, from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
