Rape – Too Drunk to Consent?

Hollyoaks currently has a storyline running whereby Ellie Nightingale has accused Nick Savage of raping her. The circumstances are they meet in a nightclub at a traffic light party; a traffic light party is a party where guests wear different colours indicating their relationship status. If they wear green it means they are single. Ellie is wearing green at the party and kisses Nick. She takes him back to her flat. She is extremely drunk and they have sex. Ellie wakes the following morning and cannot remember having sex with Nick. She later reports him for rape on the basis that she was too drunk to consent to having sex.

Rape is an offence under section 1 of the Sexual Offences Act 2003, a person is guilty of rape if:

(a) he (A) intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

To be able to consent to have sex, a person must have the made the choice to have sex and have the freedom and capacity to do so. A person may not have the capacity to consent to have sex if they suffer from a mental illness, are incapacitated due to drink or drug or because of their age.

In these circumstances Nick might argue that he reasonably believed that Ellie consented to having sex. This is because she was wearing green to the traffic light party, she kissed him and took him back to her flat. If it were decided that it was reasonable for Nick to believe that Ellie consented to having sex he would not be guilty of rape.

However, Nick was aware that Ellie was extremely drunk before they had sex and even commented on this to her at the time. There would have been others in the nightclub that witnessed how drunk Ellie was before they left.

On the facts above, Nick has raped Ellie. It is likely he would be convicted of rape, however his guilt would be decided by a jury.

If you have been accused of rape and arrested or invited to an interview regarding this, you will be eligible for free legal advice at the police station. Given we are defence lawyers, Emery Johnson Astills crime team have a wealth of experience representing and advising clients accused of rape.

If you are charged and eligible for Legal Aid, the crime team at Emery Johnson Astills will be able to represent you at Court and throughout the criminal proceedings. You can contact Emery Johnson Astills crime team on 0116 255 4855.