Intoxication Evidence in Rape Trials in the Country Court of Victoria: A Qualitative Study

Abstract

Although long associated with incidents of sexual violence, evidence of alcohol and/or other drug (‘AOD’) consumption and intoxication continues to present challenges for the enforcement of rape laws and justice for victim-survivors. This article reports on the findings of a transcript analysis of 33 Victorian rape trials involving evidence of complainant and/or defendant intoxication. Statutory provisions designed to break the culturally-assumed nexus between intoxication and consent were rarely relied upon by the prosecution. Complainant intoxication evidence was more likely to be engaged by the defence to challenge the Crown’s ability to prove the elements of rape, sometimes by invoking the intoxication/consent nexus, but more commonly by suggesting that the complainant’s account lacked veracity because their recall was tainted by intoxication. Trials could have benefited from expert evidence on AOD effects, including with respect to cognitive functions like consent formation and memory.