It can often be problematic to establish if legally valid consent to sexual activity has been given where voluntary intoxication has taken place. The Court of Appeal have stated that “drunk consent is still consent” however, the same court hearing the same case also acknowledged that “as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious”. The difficulty therefore is the validity of the consent of a person who is very drunk but not to the point of unconsciousness.

Consent is defined in the S.74 Sexual Offences Act 2003 as someone engaging in sexual activity if they agree by choice and they have the freedom and capacity to make that choice. It is important to bear in mind that consent can be withdrawn at any time. Consent is a topic of much debate and in the context of that debate it is always useful to consider what approach is being taken in other jurisdictions. We have previously considered how this is being addressed in Ireland and now consider the approach further afield.

There have been significant changes to the definition of sexual consent in New South Wales (NSW) which has seen the expansion of situations when it is considered consent has not been given. The previous definition of the term ‘consent’ was set out in S.61HE Crimes Act 1900 (NSW) which provided that “the grounds on which it may be established that a person does not consent to a sexual activity include … if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug”.

This section has now been replaced with S.61HH to S.61KH which expanded the circumstances where there can not be said to have been consent to sexual activity and added a provision requiring a person to take active steps to ensure there is consent to any proposed sexual activity. S.61HJ specifically stipulates that there is no consent where a person is “so affected by alcohol or another drug as to be incapable of consenting to the sexual activity”.

It is therefore not the fact that someone is intoxicated or has taken drugs which prevents them from consenting to sexual activity but rather that they are so intoxicated or ‘high’ that they cannot freely and voluntarily agree to sexual activity; in which case they cannot consent. This includes situations where a person is unable to withdraw consent (due to slurred speech, poor coordination or other impairment), they cannot understand the nature of the sexual acts or who with and/or a person has ‘passed out’ or otherwise unconscious and unable to communicate.

Generally, the fact an accused was also voluntarily intoxicated or high at the time of offending, is not taken into account in determining whether the accused had the required ‘mental element’ for the offence. The mental element includes situations where:

• The person actually knows the other person does not consent;
• The person is reckless as to whether the other person does not consent;
• Any belief the person has that the other person consents is not reasonable in the circumstances.