Women cannot complain of being raped while they are too drunk to remember what happened, a High Court judge ruled yesterday. Judge Roderick Evans said that "drunken consent is still consent" after the rape case of a student was thrown out of Swansea Crown Court yesterday.
A university security guard was found not guilty of raping the drama student because the alleged victim was too drunk to remember if she agreed to have sex.
Judge Evans directed the jury to return a not guilty verdict, "even if you don't agree", after the prosecution made it clear it was offering no evidence.
Huw Rees, barrister for the prosecution, said: "The prosecution has taken stock, in light of the evidence revealed in cross-examination. The question of consent is an essential part of the case. She said she could not remember giving consent and that is fatal for the prosecution's case."
Ryairi Dougal, 20, from County Donegal, had denied rape and insisted sex was consensual. During the case, the 21-year-old woman said she was unconscious during sex and could not remember whether she had consented. She told the court she was attending a party at Aberystwyth University. "I was in an awful state. I have never been that drunk in all my life," she said.
Before the party, the student bought a bottle of vodka and several fruit juices from a Co-op store in Aberystwyth, she told the court. She drank two small vodkas and a glass of wine before leaving for the party, where she joined friends posing for photographs before heading for the top floor.
After another glass of wine, she said, she began to feel ill, and vomited and slipped over in the ladies' toilets of the University arts centre. She told the jury: "My dress was in a state and I wanted to leave the centre. I then went out onto a patio for some fresh air. I was losing all focus and was feeling very dizzy."
She told the court that a woman approached her and insisted she should be accompanied home. Mr Dougal, a stranger to her and part-time University security guard, was asked to do so. The student said she recalled looking for her keys outside the door to her flat and then remembered lying on the floor inside. She said, "I could feel that something was happening."
Two days later, she spoke to a university counsellor, and Dyfed- Powys Police were called in to investigate.. Mr Dougal was questioned and claimed they had consensual sex in the corridor near her flat. That was the first time the alleged victim became aware that she had had sex.
The student told the court: "If I had wanted to sleep with him I would have taken the few steps to my bedroom."
Despite her continued insistence, however, the judge agreed with the prosecution when it decided not to continue with the case.
Judge Evans warned the Crown Prosecution Service to take more care in reviewing rape cases before going to trial.
After the case, a CPS spokesman said: "It was the prosecution case throughout that consent was not given. Under cross-examination I think she accepted that she could not remember refusing and it could not then be said there was no reasonable doubt.
He added: "The judge had said that more care should be taken during pre-trial case reviews before going to trial. When a review is conducted, it is conducted on the paper case. Of course, a trial is dependent on live evidence from witnesses in the evidence box and the two things do not always match up."
Simon Rolands, chief crown prosecutor for Carmarthen, said of the case in a statement later: "This was a difficult case. The decision was not taken lightly but after considerable consultation and with the support of independent counsel. The comments of the judge will be carefully considered and any lessons from the case will be followed."
The Sexual Offences Act 2003 states that someone who is asleep or unconscious will not be taken as having consented to sex.