The one law that could have saved Mike Nifong’s career

By KIRSTY WALKER - Last updated at 23:00pm on 17th June 2007

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drunk girls

Under the proposed laws if a girl is too drunk she will be deemed incapable of giving consent

Men who have sex with drunken women risk being convicted of rape - even if they appear to have given consent.

Ministers will unveil the controversial proposals this week in a bid to boost conviction rates for sex offences and bring more ‘date rapists’ to justice.

A new white paper is expected to propose that judges should give firmer guidance to juries in cases where the woman has been drinking.

If a woman is deemed to have consumed so much alcohol that she is incapable of agreeing to make love, the man would be far more likely to be convicted of rape.

The new law would potentially open the way for the prosecution of thousands of men for having sex with drunk women - regardless of whether agreement had been given at the time.

Successful prosecutions for rape often founder before they get to court because of the difficulty in proving to juries that a victim had not given consent.

At the moment, a drunken woman is deemed to be capable of giving consent so long as she is not unconscious.

The law change is expected to lead to a huge rise in the current conviction rate of five per cent.

Proof of whether a woman was drunk would come from medical tests - as well as evidence from witnesses and victims.

The new law places a heavy responsibility on men to be certain that a woman is sober enough to know what she is doing.

The white paper, which has been signed off by ministers, will be published later this week. It follows months of consultation with the Home Office, Ministry of Justice, police and women’s support groups.

There were nearly 15,000 allegations of rape in 2005, but only 12 per cent of these went to court and only a handful resulted in convictions.

The proposals will leave far more discretion to judges and juries to determine the amount of alcohol a woman can consume before she is deemed incapable.

The new proposals follow a recent ruling by senior judges that a woman cannot claim rape just because she was drunk.

The Appeal Court raised deep doubts over the Government’s latest attempt to improve rate conviction rates.

In March, the Deputy Lord Chief Justice Sir Igor Judge (CORR), and two other senior judges, quashed the conviction of software engineer Benjamin Bree, 25, jailed for five years in December after a drunken evening with a 19-year-old student.

The girl told the jury that she did not want to have sex, but Mr Bree told the court she had given her consent.

Sir Igor said sex amounts to rape if the woman is incapable of giving consent.

But he added: “Where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.”

The judge added that it would not be right to lay down rules – ’some kind of grid system’ – that say a woman who has reached a set level of drunkenness is incapable of consent.

He said: “Experience shows that different individuals have a greater or lesser capacity to cope with alcohol.”

Earlier this year the Council of Circuit Judges said it should be left to juries to decide whether a woman is capable of consenting to sex.

A study by the Association of Chief Police Officers has found that a ’significant’ number of rape and sexual assault victims had drunk at least the equivalent of eight pub glasses of wine. This is equivalent to two and a half times the drink driving limit.

Opponents of the proposals fear they may encourage some women to allege rape when they regret having had sex while drunk.

George McAuley, chairman of the UK Men’s Movement, said men may have to resort to obtaining written ‘contracts’ or using mobile phones to film their partners consenting to sex.