Not Guilty Rape Exeter Crown Court 2023

Our client was accused of rape of a fellow university student whilst at a house party. Both complainant and defendant were intoxicated at the time of the alleged offence and the defendant put forward the defence of consent. When a complainant was intoxicated this raises issues concerning the capacity to consent. The prosecution allege that a complainant cannot consent if incapacitated through alcohol (R v Bree [2007] EWCA Crim 804). ‘Incapacitated’ does not require unconsciousness, and therefore the Complainant’s state of mind needs to be considered carefully by a jury. Moreover, an absence of memory is not sufficient to determine a lack of consent (R v Tambedou [2014] EWCA Crim 954).

The onus is on the prosecution to prove that a lack of consent was present or that the complainant was incapable of consenting. Beyond the prosecution being unable to prove this, the defence were able to prove that the defendant had reasonable belief that the complainant was consenting, satisfying the Sexual Offences Act 2003 test (subsection (2) of sections 1-4). This was achieved by highlighting the steps that the defendant had taken to ascertain consent. The subjective test was proven by the defence, demonstrating that the defendant genuinely believed the complainant was consenting due to conversations they had during the act. The objective element of the test was also further proven using text messages from the following day, confirming that the defendant’s belief was reasonable. These arguments were proven using text messages between the defendant and complainant after the event and witness statements. Ultimately, after a five-day trial, we were able to secure a unanimous acquittal for our client by convincing the jury that consent was present.