Voluntary intoxication as a defence to rape

Thanks to Findlay Stark for drawing the following case to my attention:

Marek Mierzwa stood trial at the High Court on a charge of raping a 16 year old girl with the mental abilities of a younger child. The jury acquitted him of rape, but convicted him of what appears from the BBC News report to have been an offence under section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003. (I use that rather cumbersome formulation because it’s not clear what the offence should actually be called, as the statute, unhelpfully, doesn’t give it a name. But the offence is constituted by engaging in a sexual act with or towards a mentally disordered person who does not consent or is incapable of doing so by reason of mental disorder.)

What is significant about the case is the trial judge’s explanation of the jury verdict, reported by the BBC as follows:

“Jailing him, Judge Roger Craik QC said, “The jury must have thought you were very drunk at the time of commission of this offence and were probably not fully aware of what you were doing. Presumably that is the reason for the jury finding the rape charge against you not proven.” But, added the judge, the jury obviously came to the view that Mierzwa should reasonably be expected to know the identity and nature of his victim.”

Does this make sense? Scots lawyers tend to take the view that voluntary intoxication can never be a defence to a criminal charge, a principle which flows from the decision in Brennan v HM Advocate 1977 JC 38. There are some difficulties with applying the principle in Brennan to crimes of intent (see this earlier note on HM Advocate v Purcell [2007] HCJ 13), but as the mens rea of rape requires only recklessness as to a lack of consent, the reasoning in Brennan could be much more readily applied to a case like Mr Mierzwa’s.

But, of course, this demonstrates one problem with the decision in Brennan: is recklessness really generic in nature, which can be matched up with whatever criminal actus reus the accused commits thereafter? In Ross v HM Advocate 1991 JC 210, the appeal court sought to rationalise Brennan by saying that where voluntary intoxication negated mens rea the accused would be “assumed to have intended the natural consequences of his act” (at 214 per the Lord Justice-General (Hope)).

That has problems of its own, because Lord Hope referred to situations “where the condition which has resulted in an absence of mens rea is self-induced”, which does not quite make sense. If intoxication has resulted in the accused doing something he would not have done sober, in what sense has intoxication “resulted” in the absence of mens rea, which would have been absent in any event?

But the issue is different here. The absence of consent to sexual intercourse is not a consequence of anything (it is a circumstance), so does this mean voluntary intoxication can be a defence to a charge of rape? Assuming that Scots law is to continue to take a strict approach to the unavailability of intoxication as a defence, presumably it should not be (contrary to what Mr Mierzwa’s case seems to suggest), but Ross does not explain how that result would obtain.

Perhaps the best approach would be that suggested by section 2.08(2) of the Model Penal Code (endorsed by Lord Elwyn-Jones LC in in DPP v Majewski [1977] AC 443 at 475):

"When recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial."

(Incidentally, the temporary judge’s sentencing remarks give some indication of the directions which were given to the jury as to the fault requirement under section 311 of the 2004 Act, something on which the statute is itself silent.)

"Passing a bad law is a criminal act"

An article I wrote for tomorrow's Sunday Herald has just been published on their website. Unfortunately, some paragraphs have been lost in the editing process which means that an article which started out as a defence of the Scottish Law Commission's proposals to take sex between children under 16 out of the criminal law's scope - while raising some doubts about the Commission's proposed "proximity of age" defence - now looks like a self-contradictory attack on the proposals altogether.

(In addition, the Sunday Herald has taken out a few words in the first paragraph which mentioned that even teenage kissing could be a criminal offence in England and Wales under the Sexual Offences Act 2003. I suspect they might have taken them out because the claim seemed so ridiculous as to be patently incorrect, but sadly it's true. There's a good explanation available on the BBC News website.)

For the record, the article should have ended as follows:

"This is not to say that the fears of bodies like the Christian Institute can be ignored. There must be a danger that if the Commission’s proposals make it into law, then some teenagers will misinterpret the changes and believe that the age of consent has been radically lowered. That is better addressed by education than by passing unenforceable laws, but it means it is crucial that the Scottish Government considers exactly how to communicate the effect of new legislation.

And just one other thing. In proposing a defence for teenagers two years or less apart, the Commission seems to be concerned that they may not know each other’s exact birthdays. So, they suggest that the defence should be based on “whole age”. That is, if a boy of 16½ engages in sexual activity with a girl just turned 14, they would be regarded as only two years apart. But that would cause problems when the boy turned 17 and the girl was still 14 – would their ongoing sexual activity suddenly become criminal now that they were three years apart?

Ah, says the Commission, we have a solution: there will be a supplementary defence saying that sexual activity between teenagers three years apart in “whole age” will not be criminal if they had previously engaged in sexual activity while they were only two years apart. But that cannot be right. On that basis, the law would tell this hypothetical couple that, to avoid committing a crime, they were obliged to start engaging in sexual activity on the evening of the boy’s 17th birthday unless they wanted to wait six months until the girl turned 15.

It surely cannot be right that the law should encourage teenage sexual activity in this way. Of course, teenagers are hardly likely to keep a copy of the Sexual Offences (Scotland) Act on their bedside tables to guide their sexual choices, but that is hardly the point. Criminal law is supposed to be addressed to the public, and if a rule of the criminal law has to be defended on the basis that no-one other than lawyers will pay attention to it, it is a bad rule."