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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 sexual intercourse with a woman who does not consent. The man must know she does not consent or be 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 he honestly believed she was consenting and at the same time claim that because of his intoxication he did not understand her protestations she did not want sexual intercourse.

 

Where the victim is intoxicated, the first question is whether or not she consented to sexual intercourse. Her intoxication may mean she was factually unable to consent. If absence of consent is proved, the next question is whether the defendant genuinely believed she was consenting. This is a question of fact in the circumstances of the particular case. A man who plies a woman with alcohol, drugs or a substance as part of a plan to have sexual intercourse with her in any event, commits rape when that sexual intercourse occurs.

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