ABSTRACT
A strong feature of rape law reform since the 1980s – encompassing substantive offence definitions, criminal trial procedures and rules of evidence – has been to break the culturally assumed nexus between alcohol (and/or other drug) consumption and consent to sex. This chapter discusses the findings of a study of conviction appeal decisions, from all Australian states and territories, involving rape trials that featured evidence of complainant intoxication. The primary aim was to understand whether the objectives behind legislative and other reforms are being realised. We found that complainant intoxication evidence appears to be a double-edged sword: Depending on how it is introduced, interpreted and understood, it can both support and impede convictions. Recognising that further research is required, we suggest that a significant contributing factor is that ‘intoxication’ lacks a clear definition in Australian criminal law, and there is a tendency to turn to ‘common knowledge’ about alcohol and drug effects. This may be facilitating rather than counteracting the influence of problematic attitudes about alcohol/drugs, sex and consent that are stubbornly enmeshed in rape myths.
