Our courts need to send a consistent message about alcohol, consent and sexual violence

23 April 2024

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Reprinted from Women’s Agenda, by Caterina Giorgi – 2024-04-22

t was a judgement hailed as a huge step forward in the fight for sexual assault survivors to be believed by the justice system.

After the federal court ruled Network Ten had not defamed Bruce Lehrmann – finding on the balance of probabilities, their story that he raped Brittany Higgins was true – journalist Lisa Wilkinson said she hoped it would, “give strength to women around the country.”

While Justice Michael Lee’s ruling was trauma-informed and progressive, it also highlighted an uncomfortable truth about cultural attitudes that remain at the heart of our legal system.

In his 324-page judgement, alcohol was mentioned more than 33 times. It included a table of every drink Ms Higgins was thought to have consumed.

Why does this matter? Because if it had been a criminal trial – where the absence of consent has to be proved beyond a reasonable doubt – the victim’s level of intoxication may well have led to a different outcome.

Justice Lee’s determination provided a more nuanced discussion of alcohol’s involvement in sexual assault, stating that consent cannot be given if the victim is intoxicated.

However, this is not often the case in criminal trials. It remains common legal practice for a victim’s alcohol consumption to be weaponised against them by defence barristers, rather than presented as evidence of non-consent.

Indeed, the research shows that when alcohol use is disclosed, it’s often seen as detrimental to the victim’s case.

In Justice Lee’s determination, he cited a qualitative analysis of 102 Australian appellate court decisions involving conviction appeals from rape or sexual assault trials, which found that a victim’s evidence of their intoxication was more likely to impede rather than support the prosecution’s ability to prove non-consent.

Alcohol use is used to discredit a witness and suggest that consent was given, by implying inhibitions were lowered and memory impaired, meaning they cannot offer a reliable account.

Laws have been changed to address this outdated thinking, adding provisions to sexual offences that have tried to shift the significance of a complainant’s intoxication away from carrying an assumption of consent, towards it being evidence of non-consent.

In many Australian jurisdictions, a person cannot consent to sex if they are so affected by alcohol that they are incapable of consenting.

But these legislative advances have not resulted in widespread changes in how courts actually deal with alcohol use in determinations of sexual assault cases.

Some women are discouraged from even pursuing criminal charges if they were drinking during the time of their assault.

A Four Corners investigation late last year highlighted the case of rape survivor, Bec, who was told by Tasmanian police that because she could not fully remember her assault – and because she did not look “too intoxicated” on CCTV footage as she left the bar she could be viewed as having given consent.

Laws are only as good as the system that enforces them. If attitudes in legal and law enforcement circles remain mired in archaic perceptions of the “perfect witness”, change will continue to move at a glacial pace.

And we must see change because we know the problem is far reaching.

Figures released this month from the Australian Institute of Health and Welfare revealed that almost half of the nearly 350,000 women in 2021-22, who had experienced male perpetrated sexual assault in the previous decade, believed alcohol or another substance was a contributing factor.

It is also the most common drug used in drink spiking. And The Alcohol/Drug-Involved Family Violence in Australia project found alcohol was involved in around one in three incidents of intimate partner violence.

If we want to contribute to the prevention of sexual assault and ensure that justice is served for survivors, the judicial system needs to be unequivocal in how it deals with alcohol use.

A survivor should not be blamed or deemed to have consented if they are so intoxicated that they were unable to consent.

We need to educate the community on the link between alcohol and sexual violence, and it starts with the courts sending a clear and consistent message about consent.

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Further reading:

• Five urgent and effective measures to curb the abuse of alcohol
• Alcohol fuels gender-based violence
• Alcohol not the sole cause of gender-based violence
• Alcohol harm: provincial liquor boards need to be strengthened