As the gatehouse keeper in Macbeth very sensibly explains, drink and sex do not go well together - drink provokes the desire, but it takes away performance. He was referring to male impotence, but might just as well have been discussing female consent. Alcohol is a disinhibitor and, in the early stages, a stimulant. Women as much as men are more likely to want sex, and are less likely to raise objections to unsuitable places and partners, when they are drunk. Judges – famously sober – and still more so juries, are disinclined to convict a man of rape if it is clear the woman was drunk. No doubt she thought more of it later, and fair enough, but that is not rape.
Against a background of an abysmally low conviction rate for serious rape cases, the government was considering defining what is consent, and at which levels it was eroded by alcohol. The Appeal Court - Sir Igor Judge, Head of Criminal Justice, sitting with Lady Justice Hallett and Mrs Justice Gloster - in quashing the conviction of Benjamin Bree, has rightly told them not to bother. It is possible for a woman having consumed relatively little alcohol, or some other substance, to be beyond consent, and it is possible for a woman to consume a great deal and still give consent. The state of mind of the male needs also to be considered. Two people having sex while both are drunk is one thing, a compos mentis man having sex with a drunken woman is something else.
