Oops, I accidentally raped her....the problem of intent vs consent

If a woman is sexually assaulted by a man who claims he was sleepwalking at the time or was too intoxicated to realise she wasn't giving her consent to the act, there's a good chance he will be acquitted of raping her.

Take a recent case involving James Thomas, a 22 year-old from Middlefield in Edinburgh. He was cleared of raping a young woman (who was herself asleep at the time of the incident) because he said he was sleepwalking. Despite the fact that the woman was incapable of giving consent to the act, the jury decided the case against him wasn't proven.

The 2003 Sexual Offences Act says:
(1)A person (A) commits an offence if —
(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)B does not consent to the penetration, and
(c)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

It seems sleepwalking is therefore deemed to be a valid excuse as the man can claim he didn't intend the penetration etc. and he was in no position to "not reasonably believe that B consents". The same goes for being too drunk, as another recent case highlighted in this blog illustrates. Haydor Kahn was acquitted of rape after having sex with a woman (also asleep at the time the incident began) because he was too drunk to realise it wasn't his girlfriend.

So it seems where there is a direct confrontation between a man's inability to intentionally rape a woman and her inability to give consent, the man's assertion that he "didn't mean to" wins out.

Well, that's comforting for women to know, is it not?