|Yes - "force" need not be physical - although one would hope that the New South Wales legislature would have a definition more precise than dictionary.com.|
(Edit - apparently it does; consent is not obtained - "if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force" - Crimes Amendment (Consent—Sexual Assault Offences) Bill 2007 - in the event of a non-violent threat leading to sex, that would be sexual assault.)
Let's look at how this actually works in law, and go from there.
This from the notes on the 2003 Sexual Offences act, in UK law:
Section 74 defines consent as "if he agrees by choice, and has the freedom and capacity to make that choice". Two fundamental questions need to be answered.
First, whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
There is no definition of capacity in the 2003 Act.
The question of capacity to consent can be an important issue when a complainant is voluntarily intoxicated to the point of stupefaction at the time of the incident. In R v Bree  EWCA 256, the complainant alleged that she had been raped after an evening of heavy drinking. Her memory was very hazy and she appeared to suffer gaps in her recollection. The defendant's case was that the hazy recollection was either due to the effects of alcohol which made her forget, or the complainant was lying. In his directions to the jury, the trial judge merely reiterated the statutory definition of consent and stated that the complainant's intoxication may have an impact on her credibility. The defendant appealed his conviction on the basis, inter alia, that the trial judge should have provided greater assistance on 'capacity' and 'consent' to the jury.
In quashing the conviction, the Court of Appeal made the following comments:
The 2003 Act provides a clear definition of 'consent' for the purposes of the law of rape, and by defining it with reference to "capacity to make that choice", it sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant;
If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape;
Where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape;
Capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific;
As regards the summing up, the jury should have been given assistance with the meaning of 'capacity' in circumstances when the complainant is affected by voluntarily induced intoxication, and also whether, and to what extent they could take that into account in deciding whether she had consented.
In summary, R v Bree emphasises the importance of 'capacity to consent' in cases when it appears that a complainant has been extremely affected by the voluntary consumption of drink and/or drugs.
In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and where independent counsel will present the case, ensure that he/she is instructed to put the Crown's case on this basis.
As well, counsel should be specifically informed of this judgement and its implications for the case in hand.
Prosecutors should consider with investigators whether further, supporting evidence could be obtained to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from witnesses who can attest to the extreme intoxicated state of the complainant. If the complainant reported the alleged rape soon after it occurred, then the doctor should include in their statement any information as to the complainant's state. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and if relevant, the effects if drink and drugs are taken together As well, consideration should be given as regards experts providing back calculations as regards the level of alcohol in the blood at the time of the incident.
HCAs and counsel should be prepared to remind the trial judge of the need to assist the jury with the meaning of capacity. Although the judgement provides no definition of 'capacity', assistance can be gained from the common law which is summarised in Rook and Ward on Sexual Offences Law and Practice (3rd edition) at paragraph 1.94 as "a complainant will not have had the capacity to agree by choice where their understanding and knowledge were so limited that they were not in a position to decide whether or not to agree". It is also worthwhile to bear in mind R v Lang (1975) 62 Cr.App.R. 50 in which the Court of Appeal considered the question of whether an intoxicated complainant understood her situation and was capable of consenting under the 1956 Act. The Court found that the prosecution had to prove that the complainant's:
"..understanding and knowledge were such that she was not in a position to decide whether to consent or resist."
Second, whether he or she was in a position to make that choice freely, which is not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.
Italics mine, to address Peter's worry number 3, above.
The "Bree" referred to is the case of Benjamin Bree, who was released five months into a five-year sentence for rape, on the grounds that the jury was not given sufficient guidance on the issue of capacity. Sir Igor Judge said in the ruling on that appeal that neither was committing a crime by drinking to excess:
"Both were free, if they wished, to have intercourse with each other," he said.
The issue was whether the complainant had drunk enough either to make the apparent provision of consent impossible (that is, drunk to unconsciousness) or that she had not given consent. Bree claimed that he had a reasonable belief that she had. This is unique to rape as an offence - that whether the defendant sincerely believed that he was not committing a crime has force in law - this is also one reason why comparisons to being hit by cars are not very useful, especially when we are talking about the forcible sexual assault of another human being. Back to the CPS on the 2003 Sexual Offences Act.
In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:
(B) does not consent to the act; and
(A) does not reasonably believe that B consents.
Deciding 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 (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.
This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.
The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.
Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).
Now, what the Bree appeal did do was to address an omission in the 2003 Sexual Offences Act, where voluntary self-intoxication, as opposed to having been drugged, was not identified as a specific cause of reduced capacity to consent. David Blunkett explained this by saying, in much the same wise as Peter:
I have rejected the suggestion that someone who is inebriated could claim they were unable to give consent - as opposed to someone who is unconscious for whatever reason, including because of alcohol - on the ground that we do not want mischievous accusations.
It was to address this that Sir Igor said:
Capacity to consent may evaporate well before a complainant becomes unconscious
When capacity to consent evaporates and whether a reasonable belief in consent could be sustained are both questions which have to be decided by a jury on the available evidence.
A quick pause, to remember that juries and judges are often not great on rape.
An ICM poll for Amnesty International in 2005 found that more than a quarter of respondents thought a woman was partially or totally responsible for being raped if she was wearing sexy or revealing clothing.
Some 30% said that a woman was partially or totally responsible for being raped if she was drunk, and 37% held the same view if the woman had failed to clearly say "no" to the man. (Radnofsky, 2007 - the same report finds that a promiscuous woman is in the eyes of 8% of respondents entirely responsible for being raped - pretty depressing stuff. Report here.)
This clarification came not just out of the declaration of mistrial on the Bree case, but from concerns about prior cases, most notably that at Ruari Dougal, where Justice Roderick Evans directed a jury to acquit on the grounds that the complainant, under cross-examination, admitted to being unable to remember having given consent (or having not given it). Interview with the victim here. Depending on how you look at it, this was either a common-sense victory over precisely the sort of regret-rape accusation Peter is worried about, or a double-team by two men that prevented a case from going before a jury, the traditional method by which innocence or guilt is established in UK law.
So, that's roughly where things stand at the moment - a consultation in 2007 concluded that Sir Igor's interpretation of the 2003 Sexual Offences Act provided a clear guideline on capacity, and by extension that David Blunkett douched out in 2002 (opinion model's own). And, to go back to our starting point, it suggests that in a sensible legal framework the answer to Peter's question:
Should some responsibility not lie with the victim to ensure they don't get so drunk that they accept otherwise unwanted advances?
Is "about as much as they should be held responsible for foolishly hanging around with people who turn out to be rapists".
(Oh, P.S., for anyone who is still reading - there is a degree of doubt as to whether the proposed bill Peter mentions actually said what he believed it to have said, or indeed whether it was in fact defeated - see here and below, where we will hopefully sort that out.