R v Bree case brief

R v Bree [2007] EWCA Crim 256

Facts	Bree went to visit his brother. They went out for the evening with his brother's friends, including the complainant. They all drank a considerable amount of alcohol. The complainant remembered little about getting home, but once home remembers being sick and that Bree and his brother washed her hair. The complainant remembered nothing after this until regaining consciousness and finding Bree penetrating her sexually. The complainant agreed that she had not said ‘no', but contended that she had never consented. Bree accepted that the complainant was intoxicated but claimed that she was capable of consenting, had undressed herself and appeared willing.
Procedural History	. The jury convicted Bree of rape. Bree appealed on the basis that the judge had not made it clear that a person can consent to sexual activity even when intoxicated.
Issue	Whether a person can consent to sexual activity when intoxicated.
Holding	Appeal was allowed by the court.
Rules	“If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting… However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.”
Analysis
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