A criminal barrister says men should not sleep with women who’ve consumed any alcohol - because consent laws are misunderstood by some men.
Cathy McCulloch, who has 34 years of legal experience in sexual assault, advises men not to have sex with women if they’ve had a single drink in a Mail Online article, as this may compromise the women’s capacity to consent.
She wrote: “The law is simple. If a woman has had a drink, and says after sex she did not have the choice, freedom and capacity to consent, the man can be accused of rape.
“A man being drunk is no defence in law. The real issue is there is no legal definition of what is ‘too drunk’.
“The test is whether the drink affected a woman’s ability to make a free choice to have sex. Men don’t seem to realise this.”
It’s an issue that frequently crops up in rape cases, Sarah King, a solicitor at Stuart Miller, explained to The Independent.
“The reason for this is its capabilities of blurring the boundaries of consent,” she said.
According to section 74 of the Sexual Offences Act 2003, consent can be defined as follows: “A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
But does that person have the capacity to make that choice when they are drunk?
“This is where the problem lies,” says King, who argues that it is almost “impossible to quantify” whether or not someone is “too drunk” to consent to sex.
Intoxication blurs so many psychological boundaries - from impairing our ability to make judgments we would easily make sober, to provoking memory loss and occasionally creating false memories.
Matthew Claughton, managing director at Olliers Solicitors, said that provided the accused honestly believed there was consent, he was acting within the law.
“If he genuinely believes the complainant was consenting, he is not guilty, even if that belief was mistaken and even if the mistake was due to his intoxication.”
So, should we all abstain from drunken sex so as to avoid the murky waters where consent is concerned, as McCulloch suggests?
“To suggest that men and woman avoid drunken sex is unrealistic,” says Claughton.
“It is not possible to advise people not to engage in drunken sex, because once under the influence of alcohol they will do what they want.
“If I could offer any advice to young men and woman regarding drunk sex and consent, I would suggest that a man proceed with extreme caution if there is a disparity in the level of drunkenness between him and the female, particularly if they have never had sex before and they are not in a relationship.”