The Nature and Purpose of Complainant Intoxication Evidence in Rape Trials: A Study of Australian Appellate Court Decisions

This article reports the findings of a qualitative analysis of 102 Australian appellate court decisions involving conviction appeals from rape/sexual assault trials, where there was evidence that the complainant was intoxicated at the time of the alleged offence. We found little evidence that statutory provisions designed to break the traditionally assumed nexus between alcohol (and other drug) consumption and consent to sex are influencing trials. It appears to be the case that complainant intoxication evidence is still more likely to impede rather than support the prosecution’s ability to prove the element of non­consent — because it is engaged by the defence to: suggest consent based on a ‘loss of inhibition’ narrative; and/or challenge the credibility of the complainant as a witness and the reliability of their account.