Can drunkenness or other intoxication ever amount to a defence to a charge of sexual assault?

The answer to the question was provided by the criminal division of the Court of Appeal in R. v. Heard (CLW/07/09/16). Police officers had been required to deal with the defendant, who had been drinking heavily. As they were doing so, he exposed his penis, took it his hand and rubbed it up and down the thigh of a female officer.The answer to the question was provided by the criminal division of the Court of Appeal in R. v. Heard (CLW/07/09/16). Police officers had been required to deal with the defendant, who had been drinking heavily. As they were doing so, he exposed his penis, took it his hand and rubbed it up and down the thigh of a female officer.

At his trial, he wished to rely on a defence that he had been so drunk that he had been incapable of forming an intention to touch the officer with his penis. The judge ruled that no such defence was available in respect of this offence, because it only required proof of a “basic intent” rather than proof of a “specific intent”.

The significance of that difference is that, in law, voluntary intoxication can only be a defence to a charge which requires proof of a specific intent rather than proof of basic intent. The defendant appealed.

Dismissing his appeal, the Court of Appeal said that if the mind of a defendant charged with an offence of sexual assault had “gone with his physical act of touching”, then that touching would be intentional whether the defendant was intoxicated or not. In other words, the court said, a drunken intent is still an intent.

If drunkenness simply meant that a defendant had lost his inhibitions, or if it merely caused him to lose his memory of what he had done, this could not affect the intentional nature of his touching. The court then went on to consider whether a defendant could ever be so drunk (which was not the case of this defendant, the court decided) that he would be incapable of forming the intention to touch. In answer to this question, the court agreed with the ruling of the trial judge that sexual assault was an offence which required proof of a basic intent. Accordingly, however drunk a defendant had been, intoxication would never be a defence in a case of deliberate touching (as opposed to accidental or reckless touching).

CLW Comment

This case may well prove controversial and it is likely to provoke academic debate. Whilst, at first sight, the result may appear difficult to justify (how can a person be found guilty of intending to touch another person when in fact he had not intended to touch that person?), it is, it is submitted, consistent with an earlier decision of the House of Lords in D.P.P. v. Majewski [1977] A.C. 443, H.L. In that case it was held that a person’s lack of consciousness (on account of voluntary intoxication) that he was striking another man was no defence to an allegation of an offence against the person. In light of that decision, why should it be any different in relation to an allegation that he was indecently touching a non-consenting woman? The court also gave plenty of comfort for defence arguments. Although stressing that a drunken intent was a sufficient intent and that doing something in drink did not mean that it was not done deliberately, the court not only said that the corollary was that a drunken accident was still an accident, but also that an act of sexual touching which might be categorised as reckless in a sober person (dancing wildly to the point of giddiness, falling over and in the process of so doing grabbing at the first thing that comes to hand, which just happens to be the low-cut dress of a stranger sitting at the edge of the dance floor) would still only be reckless in the drunk.