ABSTRACT
Under existing general legal principles, it is presumed that all adults have capacity and freedom to make wise and unwise decisions, including decisions about sexual behaviour, except where statutory provisions such as the presumptions under ss 75 and 76 of the Sexual Offences Act 2003 apply. 2 However there have been suggestions that the presumption of capacity should be reversed for sex offences in at least certain circumstances not covered by these presumptions. For example, Shlomit Wallerstein has claimed that, for the purposes of s 74 of the Sexual Offences Act 2003, the courts should take the default position that ‘“a drunken consent is not consent” where the woman is very drunk’. 3 Similarly, Georgina Firth has argued that ‘the decision of the government to abandon further reform proposals [relating to sexual offences], such as a rebuttable presumption of non-consent where the victim is intoxicated, is a missed opportunity’. 4 We will critically evaluate such suggestions and examine their potential implications, not only in relation to sex offences but also in relation to other aspects of criminal law. We will also look at the relationship between capacity and consent throughout criminal law in the light of the wider context of international human rights and disability law, since there is a growing view that capacity is a discriminatory concept that has no place in modern legal systems, and concerns have been raised both about inroads into the right under Article 8 of the European Convention on Human Rights (ECHR) to consensual sexual expression in private and inconsistent application of capacity
ment of rival reform proposals for capacity and consent in criminal law.
