Ministers confirmed that they are planning to amend rape legislation to clarify the legal position on the issue of consent, a change first revealed in The Observer last December. At stake is the question of whether a jury should convict when large amounts of alcohol have been consumed by the victim of an alleged attack.
Mike O'Brien, the Solicitor-General, said last night that they wanted to see more men convicted of raping a woman in such circumstances but also wanted to avoid wrongful guilty verdicts. 'The issue [of consent] becomes particularly difficult where there is alcohol involved. What we have to do is find ways of ensuring that where a rape occurs, the rapist is convicted, but that we don't create miscarriages of justice,' he said.
Currently, women are judged as being able to consent to sex if they have been drinking, as long as they have not lost consciousness through excessive consumption. Cases in which the victim has drunk heavily before the assault occurs often do not make it to court because the police or the Crown Prosecution Service think she will stand little chance of having her account believed by a jury.
The changes would not affect the burden of proof, which means that jurors would still have to be convinced beyond reasonable doubt that a rape had taken place.
O'Brien said that while the most recent changes to rape laws, in 2003, were 'a big step forward in clarifying the law in relation to rape, some recent cases have suggested that we may need to ensure that juries get the opportunity to take a view where significant amounts of alcohol are involved'.
Government lawyers were uneasy when a judge at Swansea Crown Court told a jury last year to bring in a not guilty verdict on a man accused of raping a university student who admitted that she had drunk so much that she could not recall what had happened. 'Drunken consent is still consent,' said the judge.
Ministers are also considering letting juries see the initial interview a victim has given to the police describing the attack, often soon after it has happened, and allowing women to be helped through the ordeal of a trial by having a 'victims' advocate' to support her.