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The hangover from hell

If a drunken woman and a drunken man have sex, our legal system treats the man as a rapist. That’s wrong — and patronising

5 February 2011

12:00 AM

5 February 2011

12:00 AM

If a drunken woman and a drunken man have sex, our legal system treats the man as a rapist. That’s wrong — and patronising

Imagine, for a moment, that you’ve had a few sherries. Perhaps, even, more than a few; perhaps you have enjoyed that most pernicious of doses: the one that leaves you on the right side of consciousness but the wrong side of common sense. In which demonically stupid state, you do things that you would never do when sober: you prang a car, smash a window, break a nose, bare a backside, betray a confidence, dish an insult or, more generally, just bore for England. Whatever your behaviour, the sorry morning after will be made worse by the one thing of which you can still be sure: the fact that you were steaming drunk at the time will not constitute a defence.

From the codes of polite company to the less polite reaches of the law, we are all agreed: no deed shall ever be exonerated by the involvement of alcohol — in fact, opprobrium will usually be doubly heaped, once for the misdemeanour and again for the incontinent imbibing that preceded it.

There is now, however, an increasingly accepted exception. If inebriation has inspired a woman to choose a seedy indiscretion with a pesky bore, then her 38 sherries become, strangely and uniquely, the perfect defence. She was wronged, not wrong. Slate (hers, anyway) wiped clean.

Which is why, last week, our Crown Prosecution Service once again dragged a man into court on a charge of rape. This time it was Byron Davies, the 52-year-old chief executive of the borough council in Conwy, North Wales, accused by a younger married woman who had freely agreed to dally with him but who subsequently decided it must have been the drink talking, not her. Why? God knows. Maybe old Byron looked less appealing to her sober eyes. Maybe she feared her husband’s discovery and needed an excuse. Maybe both.

Either way, there it was, the face-saver dangling in front of her that might just get her off the hook. I don’t entirely blame her for grabbing it — gift horses and mouths, as it were — but what might have proved her salvation could yet prove to be an anomaly too far for the rest of us.


Exceptions to rules are frequently bothersome, usually created as they are to appease minority pressure groups with little interest in the conventional order of things; in this instance, factions of the feminist left who are clearly better at noise than analysis.

The measure that they like to believe supports and protects women actually does nothing of the kind. It diminishes and infantilises them instead; to define any adult woman’s voluntary participation in sexual intercourse as ‘rape’ is to equate her choice with a similarly willing child’s, which we define, correctly, as ‘statutory rape’.

It’s not an equation a grown man would tolerate for a moment. Plenty of men could be — no, I think I mean that plenty of men have been and will continue to be — in the same position as was our lady of Conwy. Regardless of our sex, when any of us is several sheets to the wind, even a stranger with a face like cheese and the breath to match can begin to look oddly attractive. Thus, a man might also allow the glow of liquor to lead him into congress with someone who would never attract him if he were sober — and a man might also, come daylight, find his hungover horror outweighed only by the terror of discovery by his spouse.

But can you begin to imagine such a man then crying rape? Calling upon, first, Her Majesty’s constabulary and then m’lud in an effort to have the wretched temptress flung behind bars? Of course not; it is inconceivable that he would deny his responsibility, however grimly rued, either for the drinking or for where it had led him. He’d give himself a good kicking, chalk it up to experience and set to praying nobody would find out.

Moreover, it is a fair guess that there are legions of such rueful men. Contrary to urban myth, most regretted sexual encounters do not result from a sober, calculating lounge lizard spiking the drinks of innocents; most happen, instead, when a pair of idiots — courtesy of shyness, inexperience or habit — drink each other under the table and into bed.

Yet within the illogical reasoning of the CPS, if such a man and woman match each other drink for drink all evening and then agree to adjourn for a lie-down, the man is deemed capable of responsibility not only for the validity of his side of the agreement but also for hers… while she is deemed incapable of responsibility for anything at all, the ditzy little half-wit.

So if he’s a ‘rapist’ and she’s a twit – who, precisely, is the victor? It’s a question to which the CPS might usefully address itself, in the shortest possible order, and for three good reasons.

First, juries throw out these cases with the disdain they deserve. At last week’s trial, Mr Davies was cleared in an hour flat; in a similar case brought recently against a young chef, his jury took only 45 minutes to clear him. So if we really are looking to increase the conviction rates of real rapists, these daft exercises don’t seem likely to up the odds.

Second, it is a lousy thing to do to a man who is stupid but not criminal. Any relief Davies might feel must be tempered by the nine months of gossip since his arrest — gossip which will never quite vanish — not to mention a suspension from his job and, even now, no certainty that he will be reinstated. ‘Office’ and ‘disrepute’, so the whisper goes.

Third, and it is mystifying why this is not salient to the viragos of equality, the use of this special exception to our usually stern refusal to excuse drunken exploits — an exception applied only to women and only to lamented sexual intercourse — is chillingly retrograde.

No package of equal rights can possibly be complete without the inclusion of an equal right to foolish excess, an equal temptation to consequent debauchery, an equal obligation to take responsibility for the mistake and then, if tragically rumbled by an infuriated spouse, an equal expectation that a woman takes her punishment like a man.


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