Getting the balance right between victim and perpetrator

Controversy in the UK has most commonly centred on issues of intoxication at the time of sex, with the initial conviction the case of R v Bree drawing a lot of concerns.

Bree, the complainant, and others went out for an evening. All had been drinking heavily and, in the woman's case, this impaired her memory. They returned to the woman's flat, the pair arm in arm. The woman's case was that, although she remembered various sexual acts and being sick, she 'did not want to have sex, but she did not say so to him'. She agreed that she had not said 'no', but contended that she had never consented. Bree accepted that the complainant was intoxicated but claimed that she was capable of consenting, had undressed herself and appeared willing and co-operative. A jury convicted Bree of rape under the Sexual Offences Act and he was sentenced to five years imprisonment. Bree appealed on the basis that the judge had not made it clear that a person can consent to sexual activity even when intoxicated.

The Court of Appeal allowed Bree's appeal, indicating that "we do not think that the issue of consent should be left to a jury without some further direction". By then Bree had spent six months in prison. The Court of Appeal also held that "where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing..., and in drink agrees to do so, this would not be rape." In a broader context, retired British Judge Mary Mowat further observed that 'the rape conviction statistics will not improve until women stop getting so drunk'.

The outcome of such a case in Australia is likely to be different in at least some states/territories. According to the Australian Law Reform Commission "In Victoria, South Australia, Tasmania and the Northern Territory, there is no consent where the complainant is so affected by alcohol or other drugs as 'to be incapable of freely agreeing'. In the ACT, the effect of alcohol or other drugs is less qualified; there is no consent if consent is caused by 'the effect of intoxicating liquor, a drug or anaesthetic'. In NSW, there may be no consent where a complainant was 'substantially intoxicated by alcohol or any drug'".

Not paying a prostitute for sex is also rape in some Australian states/territories.

Historically, the landmark (English) common law case is the Linekar case of 1993. In brief, Linekar, who had no money on him, approached the complainant, a prostitute, and negotiated a fee of £25 for sexual intercourse. After sexual intercourse Linekar ran off without paying. He was charged with rape, contrary to section 1 of the Sexual Offences Act 1956 (UK).

At the trial, the judge directed the jury that if L had intended, from the outset not to pay for sexual intercourse with the woman, in breach of their agreement, then the woman's consent was negated and he should be convicted of rape. The jury found L guilty by a majority of eleven to one. The Appeals Court decided that the direction was not correct, and that the conviction should be quashed. It was held that existence of fraud about defaulting of payment to a prostitute did not constitute non-consenting sex, if the woman knew the nature of the act and with whom she was having intercourse.

While this decision predates changes to UK rape laws made in 2003, it seems that reneging on payment to a prostitute for sex is not rape today in the UK, though on one view the possibility could arise if deception as to payment involves coercive inducement or altered the nature or purpose of the act in question. Making off without payment for goods or services is, nevertheless, an offence in the UK under the Theft Act 1973.

In Australia, the same issue came into prominence, on 6 February 2015, when a Canberra man was sentenced for raping a prostitute. According to the Canberra Times the defendant handed over a sealed envelope (supposed to contain $850) but stopped the woman from opening it to check the money, saying: "No, no, don't open it now, it's – you have to trust me on this – it's part of my fantasy that it's all about the romance." The pair had sex but the woman later opened the envelope to find that, instead of money, inside was a paper bag that had been folded to make it feel like a wad of cash, as well as a white card with a printed red rose on it. The woman later reported the incident to police and the man was charged with rape.

The ACT's version of the Crimes Act 1900 (Section 67) states that the grounds, on which it can be established that consent of a person to sexual intercourse is negated, include "consent caused by a fraudulent misrepresentation of any fact made by the other person". The Defendant pleaded guilty to sexual intercourse without consent and received eight months' jail and a two-year good behaviour order. His lawyers told the court he was prepared to pay reparations, but the Crown indicated that none was being sought. Tasmania and WA have similar provisions concerning fraudulent misrepresentations as exist in the ACT, so that a similar outcome would also be likely in those states.

US courts generally view non-payment of a prostitute as "theft of services" rather than rape. Theft of services is the legal term for obtaining services without paying the provider.

Philadelphia Municipal Court judge Teresa Deni in 2007, for example, in a controversial case ruled that refusal to pay a sex worker was not rape, but rather "theft of services." In the case, a woman had agreed to meet a man from Craigslist and have sex with him for $150. The man asked the woman if his friend could join in for an additional $100, and she agreed. When the woman met with the men, they refused to pay. Instead, they held her at gunpoint and forced her to have sex with them for free. Judge Deni ruled that since the woman was a sex worker, and had given prior consent under the assumption of being paid, the case was not a rape. She decided instead that he should be held on armed robbery for "theft of services." [Many lawyers in the US questioned the verdict handed down by Judge Deni. They contend that the crime was indeed rape because the woman should have been regarded as withdrawing her consent upon discovering that she was not going to be paid and the sex was at gunpoint.]