Drunk sex and consent

- How the Bruce Lehrmann verdict muddied the waters.

The whole business is a mess. For years now, our media and sexual consent courses have been getting the law totally wrong about intoxication and consent - with the result that growing numbers of mostly young men are finding themselves wrongfully accused of rape.  

Two highly significant NSW cases have called out their wrong thinking, drawing on expert forensic toxicology evidence to explain why you can give consent while intoxicated. Just because you can’t remember what happened doesn’t mean you didn’t consent to sex, say these judges.

The accused men in these cases were found not guilty because of this vital principle. In addition, the judges awarded costs against the crown and made it clear these cases should never have ended up in court. Both cases attracted headlines and ultimately contributed to the decision by the Crown Prosecution office to hold an audit into whether sexual assault cases are being supported by unsatisfactory evidence. These are important decisions, which should help clarify an issue causing endless strife in personal relationships.

Less so, the recent decision by Justice Michael Lee in the Bruce Lehrmann defamation case. Justice Lee concluded this case also revolved around intoxication and consent and made unjustified assumptions about the effect of alcohol on Brittany Higgins’ state of mind and memory.  

It’s a confusing verdict in this pivotal case which has dominated our news for so many years. The result is it muddies the waters, adding to public confusion about this vital matter which impacts so negatively on many young people.   

Late last year, The ABC’s 7.30 Report ran a segment claiming to explain the law regarding alcohol and consent. As usual, our public broadcaster was intent on pushing a feminist barrow and didn’t bother to do its homework.

Their television story featured Bec, a Tasmanian woman who ended up getting very drunk with a male friend in a bar. She recalls driving back to her house but the next day she couldn’t remember what happened after that. She communicated with the friend, and he confirmed by text that they had had sex.

It was her lack of memory of the event which convinced Bec that she had been assaulted and led her to a long ultimately unsuccessful journey to try to get him charged.

Naturally, the ABC program was up in arms that Tasmanian police failed to prosecute Bec’s former friend.  They dug up an “expert” who claimed that if Bec “can’t remember what’s happened, then there wasn’t consent. And that is a sexual assault”.  

“Not true,” says a Queensland specialist in criminal law, Ken Mackenzie, who responded with a feisty blog – “ABC gets the law and science all wrong about consent and alcohol.” Mackenzie has been recently buying into public discussion over a number of issues – having resigned from his position on the Criminal Law Committee of the Queensland Law Society.  

“In law, a person may have consented, even if they do not remember,” he writes, quoting expert evidence to show intoxicated people are quite capable of behaving quite normally even if later they suffer memory loss for these events.

Confusion arises over the use of the term “blackout” which is sometimes thought to mean passing out, a loss of consciousness, but in fact, it actually includes a situation where a person is conscious, and interacting with his or her environment but the brain is not creating long-term memories of the events.

In that situation, a person might be quite capable of giving enthusiastic consent and not remember it. Mackenzie quotes University of Texas psychologists who have researched blackouts:

“An intoxicated person is able to engage in a variety of behaviours, including having detailed conversations and other more complex behaviours like driving a vehicle, but information about these behaviours is not transferred from short-term to long-term memory, which leads to memory deficits and memory loss for these events.”

“Blackouts are much more common among social drinkers than was previously assumed, and have been found to encompass events ranging from conversations to intercourse. Fragmentary blackouts occur more frequently than en bloc blackouts, but neither type appear to occur until breath alcohol concentrations are 0.06 g/100ml or greater.” (The general legal driving limit in most states is 0.05%)

And here, Mackenzie quotes an alcohol rehab guide:

“When an individual blacks out, he or she will continue to hold conversations and engage in activities like normal. In fact, outside observers are typically unaware that an individual is blacked out. Depending on how much alcohol the person drank and how impaired other brain functions are, a person in the midst of a blackout could appear incredibly drunk – or barely intoxicated at all.”

The truth about these matters is important, said Mackenzie in discussion of his blog on Reddit: “It's about thousands of people going out drinking at parties and clubs every weekend. Some of them decide to have sex. Some of them consent, and have good capacity to consent, but don't remember much the next day. Those ones weren't raped. Creating the belief that they were leads to misery and fear for hundreds of people.”

As he explains, “blackout memory does not mean you were too drunk to be responsible for your decisions. You can be guilty of crimes you commit. You can properly and legally consent to sexual interactions.”

All of this was spelt out in two recent cases which ended up at the heart of the stoush between NSW District Court judges and the Crown Prosecutor. In R v Smith the issues were very clear. The case involved a woman who had a regular fuck-buddy she’d been seeing for many months, despite having acquired a new boyfriend. On the occasion in question, the two met up and ended up having a heavy drinking session before going back to his home. The next thing she remembers is waking up in his bed around 9 that night.

According to the judge, Peter Whitford, the accused gave a “reasonably detailed, coherent and credible account” of their sexual encounter, which included her pushing his head down towards her crutch which led to him performing oral sex. His text messages to her the next day expressed surprise and concern that she had suddenly left after waking up in his bed.  

Experts on forensic toxicology who were called by both the defence and the prosecutor agreed that she could have given consent despite her blackout. Dr Pieternel van Niewenhuijzen, the expert for the prosecution, explained that despite the loss of memory people experiencing blackouts “can have conversations, they can drive, they are capable of responding, as though perfectly normally, to external stimuli. …. the person so affected is still capable of functioning in ways that might appear to an observer to be completely normal…. Furthermore, a person in that state may be capable of masking outward signs of intoxication, such as psychomotor difficulties like walking unsteadily and slurred speech; all the more so in someone who is a seasoned drinker."

Professor McDonald Christie, expert for the defence, reached similar conclusions: “when a drinker is experiencing a blackout, and not laying down a memory, they may still nonetheless be well capable of functioning in the world. They can carry out everyday tasks, they can engage with people socially, including sexually. He said that whilst they are in a state of blackout, it is possible that people around them, and people with whom they're engaging, may have no appreciation of just how intoxicated they are; all the more so if the person is an experienced drinker and the signs of their intoxication might be masked.”

The complainant in R v Smith never said that she didn’t give consent – yet the prosecutors decided to still give it a go. Whitford was scathing about this decision and awarded costs against the Crown.

Remarkably similar facts played out in R v Martinez, another case which made headlines last year. I’ve written about this case, where the complainant nine times got totally pissed and had sex with separate men, only to turn around and report them for sexual assault, claiming she’d been too drunk to give consent. All these cases ended up with the men facing a sexual assault charge, although three took a plea bargain and pleaded guilty to lesser offences.

Here too, the District Court judge Newlinds called out the prosecutors for pushing through undeserving cases, “drawing the criminal justice system into disrepute.” Here too the complainant instigated the sexual activity but later claimed to have had a blackout. Here too Dr van Niewenhuijzen was called as an expert witness, and pointed out it was quite possible the complainant had given consent, despite her level of intoxication and subsequent memory loss. Here’s Newlinds’ commentary on that: “Her own idiosyncratic definition of sexual assault includes a misguided understanding of the law to the effect that if a person cannot remember having sex with someone else that equates to sexual assault. It goes without saying that is a concept that is not known to the law.”

And here too, the jury found the accused not guilty and the judge concluded the case should never have been brought to trial. Newlinds added, “If the jury had known the full picture of the Complainant’s history of accusing men of rape in similar circumstances, the time of deliberation would have been measured in minutes.”

The law is clear – intoxicated women may be able to give consent to sex, even if later they can’t remember what happened.

There is a spectrum of drunkenness/intoxication. At the extreme end, a person does lose capacity to consent. If they’re passed out, unconscious, then they can’t consent. If they don’t understand what they’re doing or what’s happening, then they can’t consent. The line is expressed differently in the various Australian states and territories.

Which brings me back to Michael Lee, the judge who made the recent decision, now under appeal, in the Bruce Lehrmann defamation case. Even though Bruce Lehrmann claimed no sexual activity took place, Justice Lee did not believe him and the case then turned upon whether the sex was consensual.

Lee found that Lehrmann raped Brittany Higgins, on the balance of probabilities. He believed her when she said she did not consent. He believed her evidence that, at the time Lehrmann started having sex with her, she was unaware of her surroundings - despite the video footage of her chatting to security guards and then tripping along the parliamentary corridor which was surely evidence that she was “well capable of functioning in the world” less than half an hour before she claimed she turned into “a log”.  

Lee’s discussion of Higgins’ alleged log-like state includes references to  “tonic immobility” - a “freeze” response often promoted in the feminist literature on rape but actually based on extremely dubious, flawed science. This is odd because this issue was never raised in evidence, and Lee himself says that he cannot “rely on matters not in evidence” so he had to put it aside and ignore it. If it was irrelevant to his decision, why mention it at all?

Hmmm, we note that after the verdict, Higgins thanked Lee for his “trauma informed judgement’ – clearly such references went down well. 

Although the judge concluded the couple did have sex, there’s much in the judgement to suggest the consent issue was not clearcut. The judge’s own findings – the evidence showing Higgins’ intentions prior to what happened in the Minister’s office: smooching in the bar, happily going with him back to Parliament House - clearly indicate a willingness on the part of Higgins to do something more than to drink whiskey.

Lee found Lehrmann was a young man with only one thing on his mind when the pair drove to Parliament House. The same could be said about Higgins, for the same reasons.

Lee said he could not believe Higgins about anything, unless what she said was backed up by some other, objectively true, evidence. Yet his interpretation of such objective evidence is most unusual. Take Higgins’ equivocal message to her ex-boyfriend in response to his question in the days after the alleged offence - “Did you hook up in there or did someone take advantage of you?’’ Her response: “Yes, it was just Bruce and from what I recall. I was barely lucid. I really don’t feel like it was consensual at all.” Somehow Lee finds this supports the Higgins’ rape story.

It is all very confusing, particularly when we consider the fact that the R v Smith case was making headlines just as Lee was putting together his judgement, yet he does not give any convincing reason for preferring Higgins’ story over the possibility that she consented, fell asleep later and then later had only fragments of memory about what happened.

Clearly a defamation decision has no prescribed role in public education, yet it is most unfortunate this hugely publicised verdict has simply added to the public confusion around intoxication and consent. Just one more damaging legacy from the sorry Brittany Higgins saga.