DC (Pursuer) v DG (First Defender) and DR (Second Defender)
A woman who alleged that she was raped by two footballers on the basis that she was incapable of giving “free agreement” because of the effect of alcohol has been awarded damages after she was found to have proved her case.
The Court of Session ruled that both defenders took advantage of the pursuer when she was “vulnerable through an excessive intake of alcohol” and that they each raped her.
The pursuer, “DC”, claimed damages from “DG” (first defender) and “DR” (second defender) on the basis that in the early hours of 2 January 2011 they both committed the common law wrongs of sexual assault and rape against her.
Although there was a full police investigation into the allegation, no criminal prosecution resulted.
The pursuer maintained that she had no recollection of the events concerned and maintained strongly that she would not have consented to have sex with the two defenders.
The defenders each maintained that they did have sexual intercourse with her at that time, but that it was consensual.
The issues in the case for determination by the court were, firstly, whether, by reason of excessive consumption of alcohol, the pursuer was incapable of consenting at the material time, and secondly, whether each of the defenders had a legitimate belief, whether reasonable or honest, that she was consenting.
Following a 10-day proof during which the evidence of 20 witnesses was heard, Lord Armstrong found that the pursuer had proved her case, namely that at the time when sexual intercourse took place with each defender, she was incapable of giving free agreement because of the effect of alcohol; that both defenders were aware that she was incapable of giving free agreement; and that neither of the defenders had a reasonable or honest belief that the pursuer consented to sexual intercourse.
On the basis, in particular, of the forensic findings as to the pursuer’s blood alcohol level, the eye witness evidence, and the evidence of a consultant psychiatrist specialising in harm related to alcohol, Lord Armstrong found that, in the period when she was in the flat at Greig Crescent with the defenders, the pursuer “lacked the level of cognitive functioning necessary to make reasoned decisions and, consequently, lacked the ability to give meaningful consent by free agreement”.
As to whether the defenders had a reasonable or honest belief that the pursuer was consenting to sexual activity, the judge found neither defender to be credible or reliable in relation to this issue.
The opinion of Lord Armstrong states: “I find that it has been proved that the pursuer’s impaired cognitive functioning and general condition of intoxication was so obvious and manifest that the defenders must have been aware that she was not capable of meaningful consent, and that neither of them could have had a reasonable belief that she was.”
The fact that at no time had the pursuer said “no” could never be determinative in a case of this sort.
Lord Armstrong’s opinion states: “The current state of the law, having regard to the modern defined meaning of consent in this respect, is such that its value is that it sends a clear signal that anyone dealing with someone who is intoxicated is put on notice that that person may not be able to give consent no matter what she says or does.
“In that regard, I have found on the balance of probabilities that both defenders culpably ignored what, on the evidence, were clear indicators that the pursuer was not capable of meaningful consent, and instead deliberately took advantage of the situation in order to sexually assault her.”
The opinion concludes: “Having carefully examined and scrutinised the whole evidence in the case, I find the evidence for the pursuer to be cogent, persuasive and compelling.
“In the result, therefore, I find that in the early hours of Sunday 2 January 2011, at the flat in Greig Crescent, Armadale, both defenders took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol and, because her cognitive functioning and decision‑making processes were so impaired, was incapable of giving meaningful consent; and that they each raped her.”
In these circumstances, the pursuer having proved her case, the court pronounced decree against the first and second defenders, jointly and severally, in the agreed sum of £100,000.
Notes to editors
The full opinion can be accessed via the Scottish Courts and Tribunals Service website.
Please note that the parties have been anonymised for data protection reasons and to ensure that SCTS complies with its obligations under the Children and Young Persons (Scotland) Act.
However, there is no contempt of court order in place in respect of this case and therefore the normal reporting rules apply.