R v Bree [2007] EWCA Crim 256
Facts
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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.
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Procedural History
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. 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.
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Issue
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Whether a person can consent to
sexual activity when intoxicated.
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Holding
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Appeal was allowed by the court.
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Rules
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“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.”
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Analysis
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Notes
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