The legal question is: Was the person incapable?[1]
Not every person who has been drinking or taking drugs is incapable.
Not every person who later does not remember consenting was incapable (blackout memory cases).
The older cases say that the Court must ask: Was the person so intoxicated that they were “incapable of deciding whether to consent or not”? [2]
One situation where there is certainly no legal consent is this: If the person has no understanding of what is occurring they cannot give legal consent. They are incapable of making up their mind whether to consent or not. [3]
The law’s traditional view of capacity to consent was to ask: [4]
(a) Could the person understand what was proposed as a physical act? and,
(b) Could the person understand that the act is of a sexual nature as distinct from an act of a totally different character?
The amendments in 2024 seem to have made no change to the law about this. [5]
At a trial, the prosecution must prove beyond reasonable doubt that there was no consent. An accused person must be given the benefit of any reasonable doubt.
If you are accused, if there is even a hint of a suggested accusation, you need a lawyer. Call us immediately on (07) 3236 1202 (24 hour emergency number).
[1] Section 348AA(1)(c) Criminal Code 1899 – in force with effect from 23 September 2024
[2] R v Francis [1993] 2 Qd R 300 at 305 – which also referred to that incapability arising from a “drunken stupor”
[3] R v Blayney and Blayney [2003] SASC 405 at [16], cited in R v SAX [2006] QCA 397 at [20] per Keane JA, with whom Jones J agreed
[4] R v Morgan [1970] VicRp 43; [1970] VR 337
[5] Explanatory Notes – page 6 – The Parliament intentionally made no change to the meaning of “cognitive capacity.” Nor did it include any test for whether a person is “incapable”. This might be taken as a decision by the Parliament not to extend the rule to people whose judgment is impaired by alcohol, nor to people who might not have consented if they were sober. Compare the Tasmanian law – “so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter” – Section 2A(2)(h) Criminal Code 1924 (Tas)