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Last Updated: Thursday, 24 November 2005, 18:09 GMT
Drunk consent rape case scrutiny
Ryairi Dougal outside court
Ryairi Dougal insisted that they had consensual sex
The barrister who prosecuted a rape case - thrown out when the woman said she was too drunk to recall events - is to submit a report to the CPS.

Judge Mr Justice Roderick Evans agreed with the prosecution who said that "drunken consent is still consent".

The jury at Swansea Crown Court was subsequently directed to return a not guilty verdict.

The ruling has been criticised, amid concerns that other women will be put off reporting cases of alleged rape.

The law will protect people who are drunk as well as people who are sober but it is harder to prove in those cases
Barrister Kirsty Brimelow

The Crown Prosecution Service (CPS) said the outcome did not set a precedent for other rape cases and defence barrister Kirsty Brimelow told the BBC that people should not be worried by the judgement.

"The law is set down in statute and the judge will consider each case on its own facts so I don't think people have to get very worried that what it means is if you have something to drink, and then you're raped, that you have no defence.

"The law will protect people who are drunk as well as people who are sober but it is harder to prove in those cases."

The court heard how the 21-year-old Aberystwyth University student became drunk during a party at the university arts centre.

Sex in a corridor

People became concerned about her and Ryairi Dougal, 20, from County Donegal - a part-time security guard at the college - was asked to escort her to her flat.

It was two days later when she complained to a university counsellor that something had happened and police were called in.

When questioned, Mr Dougal said they had consensual sex in the corridor near her flat. This was the first time the female student became aware they had sex.

She told the court that there was "no way" she would have agreed to have sex in a corridor.

But when questioned by the defence, she acknowledged that she could not remember anything and therefore could not definitively say if she consented to sex or not.

Huw Rees, prosecuting, said that "she could not remember giving consent and that is crucial to our case. The question of consent is essential".

The really difficult area is where the person is so drunk they are not unconscious and are so drunk that they are not really able to consent
Law professor Jennifer Temkin

The judge agreed with the prosecution when it decided not to continue with the case and told the jury to bring in a not guilty verdict.

A CPS spokesman said it had always been the prosecution case that consent was not given, and under cross-examination the women accepted she could not remember refusing.

A report has been requested from the prosecuting barrister by the chief crown prosecutor of Dyfed-Powys. A copy will be sent to the director of public prosecutions.

This situation goes to prove each rape case has to be taken on its individual merits
Dave Wilson, Chester

Jennifer Temkin, a professor of law at Sussex University, said: "If you have sex and you consent to it when you are drunk then that isn't rape.

"If someone has sex with you when you are unconscious then that is rape. The really difficult area is in between, where the person is so drunk they are not unconscious and are so drunk that they are not really able to consent."

David James, solicitor for Mr Dougal issued a statement saying he always maintained that the complainant consented. "He made a voluntary statement to this effect at a very early stage of police investigation and he continues to deny emphatically that he had intercourse without her knowledge or consent," it read.

Barristers explain why the case was dropped



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