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V I N T O X I C AT I O N Question considered in Heard  whether sexual offences are basic or specific intent. D was v drunk and waiting to be seen at hospital; became angry and punched one of the officers accompanying him. He then undid his trousers and rubbed his penis along the thigh of the officer and was charged with sexual assault. CoA ruled s.3 was basic intent: a deliberate touching that was sexual sufficed. D's extreme state of intoxication was inadmissable. Bree  D and C had spent an evening together and had voluntarily consumed a considerable amount of alcohol before returning to C's flat and having sex. C said she did not consent; D contended that she did. Held: The proper construction of the s.74, which defined consent, was that if, through drink, or for any other reason, the complainant had temporarily lost her capacity to choose whether to have sexual intercourse on the relevant occasion, she was not consenting, and subject to questions about the defendant's state of mind, if intercourse took place, that would be rape. However, where the complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing, and agreed to do so, that would not be rape. As a matter of practical reality, capacity to consent could evaporate well before a complainant became unconscious. Cooper  s.30 - sexual activity with a person with a mental disorder impeding choice. C had engaged in sexual relations with D because of an irrational fear of what would happen if she did not. Held: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.
4 Doyle  D appealed against a conviction for rape. D had visited his girlfriend V at her flat. An argument ensued and he then dragged her to the living room where he said he wanted sexual intercourse. V stated that they were no longer in a relationship and that she did not want to have sex with him. D restrained V and removed her underwear, forced her legs apart and forced his penis inside her. V protested until he had successfully penetrated her; she then ceased to resist as she thought it would be worse to continue her resistance. Held: submission is not the same as free and informed consent, and only free and informed consent will preclude a finding of rape. J. R. Spencer - "The Sexual Offences Act 2003: (2) Child and family offences"
"Like the rest of the Act, however, it seems to me that there is much about the new set of child and family offences that is deeply unsatisfactory...the Act contains a group of new "familial child sex offences" that criminalise all sexual acts where one of the participants was under 18 and the other was any of a wide range of relatives or carers; and, further expanding on the existing law of incest, the new Act also contains an offence called "sex with an adult relative" that prohibits a range of sexual acts between consenting adults far wider than those that fell within the old offence. "
"The new child sex offences are open to two obvious criticisms: complexity and obscurity, and "legislative overkill". To take the complexity point first, this part of the new law replaces the previous law, which consisted of three specific offences of sex with children plus four child-related adaptations of more general offences, with a new list of no less than 11 specific offences.The number might be justified if all of them covered different ground. But this is not the case, because a number of the offences seriously overlap."
"The oppressive content of the new law largely stems, I believe, from the fact that those responsible for framing it have no intelligible philosophy as to what sort of behaviour the criminal law should and should not prohibit, and see nothing wrong in principle with enacting laws that make theoretically illegal whole swathes of human activity that is blameless or harmless, leaving it to the discretion of the police and other authorities to decide whom to prosecute, and for what."
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