Dame Elish Angiolini has called for a change in rape laws going beyond 'no means no' to cover situations where women are incapable of consent

Women should be able to automatically claim they were raped if they have sex when intoxicated, a controversial report concluded yesterday.

Dame Elish Angiolini called for a legal change so a woman would be considered incapable of consenting if she had been drinking heavily.

In her wide-ranging report on rape, the experienced barrister said the Sexual Offences Act should be amended to clarify the law on consent where alcohol is involved.

Lawyers in crown courts currently cite previous rape cases where copious amounts of alcohol have been involved to support their case.

Judges and juries then use their common sense to decide if an accuser really was incapable of consenting to sex.

But now Dame Elish, a former Lord Advocate in Scotland, has called for a woman’s incapacity to consent to be ‘embedded in legislation’.

In practice, this would mean imposing an alcohol limit above which women would be considered incapable of consenting.

Police would be asked to carry out blood tests on alleged rape victims to establish the level of alcohol in their bodies. They would then calculate how affected she was at the time.

If judged to be drunk, the woman would not be regarded as being able to consent to sex.

This would make it virtually impossible for a man accused of rape in this situation to claim he believed she had said yes.

However, it could also open the way for prosecutions of men who have drunken encounters with wives or girlfriends as well as arguments over medical evidence and levels of intoxication.

Dame Elish’s call comes after the country’s top prosecutor said the legal system should move beyond the concept of ‘no means no’ to recognise situations where women may have been unable to consent.

Director of Public Prosecutions Alison Saunders said rape victims should no longer be ‘blamed’ by society if they are too drunk to consent or if they simply freeze in terror.

She has issued new guidance to police and prosecutors as part of a ‘toolkit’ to move investigations into the 21st century.

Director of Public Prosecutions Alison Saunders has also previously called for society to stop 'blaming' victims of sexual assault who are too drunk or freeze in terror

Previous attempts to toughen rape laws with a ‘sex breathalyser’ under which a woman who had drunk a certain amount would no longer be able to consent to sex have failed.

In 2007, the Court of Appeal ruled that a person may be capable of consenting even if drunk.

The case involved software engineer Benjamin Bree, 25, whose conviction for raping a student after a night of heavy drinking was quashed on appeal.

Delivering the ruling, Lord Judge said that consent could be given even after ‘heavy alcohol consumption’.

He said it would be impossible to devise a system that would link a person’s capacity to consent with how much alcohol had been consumed.

‘Experience shows that different individuals have a greater or lesser capacity to cope with alcohol and indeed the ability of a single individual to do so may vary from day to day,’ he said.

Dame Elish, the Principal of Oxford University’s St Hugh’s College, also made 46 recommendations in her review of the way rape cases are handled in London.