3. What if either party was intoxicated at the time of the intercourse?

3. What if either party was intoxicated at the time of the intercourse?

Self-induced intoxication whether by alcohol, drugs or a substance is no defence to a charge of rape. Rape is having sexual intercourse with a woman who does not consent. The man must know that she does not consent or is reckless whether she consents or not. A man who argues that because of self-induced intoxication he did not understand she was not consenting and accordingly went ahead, is at least reckless whether she consents or not. He cannot claim that he honestly believed she was consenting and at the same time claim that, because of his intoxication, he did not understand her protestations that she did not want sexual intercourse.

Where the victim was intoxicated, the first question would be whether she consented to the act of sexual intercourse. Her intoxication may mean that she was factually unable to consent. If absence of consent is proved, the next question would be whether the defendant genuinely believed that she was consenting. This is a question of fact dependant upon the circumstances of the case. A man who plies a woman with alcohol, drugs or substances as part of a plan to have sexual intercourse with her, commits rape as soon as the act of sexual intercourse occurs.