The complainant had been severely intoxicated while the defendant had sex with her. It was found that in order for sex to be consensual the victim must have the capacity (the ability) to say no. If one is so inebriated as to be incapable of refusing intercourse, such intercourse is rape. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, 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.
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