It is commented that the essence of the above cases is disagreeable due to the fact that it leans to the view that the legal standard in the instance of an attack where a woman has no mind which she can be brought to bear on the issue of consent, is different from that standard where the woman is mindfully appraised of the situation with which she is confronted. The point is rather that the fundamental issue as to the state of the woman’s mind is that she was not consenting; although evidence of struggle and other resistance will constitute relevant fact to the issue of consent, but such element should not be a required legal condition. In other words, a lack of resistance is not necessarily amount to consent.
The position was illustrated in a celebrated case of R. v. Olugboja, the issue in this case was whether to constitute the offence of rape, it is necessary for the consent of the complainant to sexual intercourse to be vitiated by force and resistance or whether it is sufficient to prove that in fact the complainant did not consent.
The Court of Appeal pointed out that earlier authorities emphasized the use of force, but the present legal requirement is clear that lack of consent is the crux of the matter and this may exist though no force is used. It is therefore wrong to assume that a complainant must show some signs of injury or she must always physically resist before there can be a conviction for rape.
It is noted that the current common law approach is that the question to be asked in rape cases is not whether the act was done against the woman’s will but whether it was done without her consent. The court in R. v. Olugboja added that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.
However, in R. v. Larter and Castleton the defense counsels argued that the judge should give an express direction as in R v. Howard that the prosecution had to prove that the complainant physically resisted.
The Court of Appeal, in dismissing the appeals, re-affirmed that the essential in the standard of consent is the absence of consent (without consent), and any attempt to introduce a different legal criterion was both mistaken and contrary to law.
Therefore it is observed that if non-resistance on the part of a complainant proceeds merely from her being overpowered by actual force or she not being able to resist any longer, or from the number of persons attacking her and she considered resistance dangerous and absolutely useless, the crime is committed. It is no excuse that she was first taken with her own consent but later she was forced against her will, nor is it an excuse that she consented after the act, or that she was a common prostitute or the concubine of the accused, because she is still under the protection of the law, and may have the right not to be forced.
According to the Heilbron Report:
"It is wrong to assume that the woman must show sign of injury or that she must always physically resist before there can be a conviction for rape. We have found this erroneous assumption held by some and therefore hope that our recommendations will go some way to dispel it."
The Report recommended:
"As rape is a crime which is still without statutory definition, the lack of which has caused certain difficulties, we think that the legislation should contain a comprehensive definition of the offence which would emphasize that lack of consent (and not violence) is the crux of the matter."
In response to the proposal of the Heilbron Committee, the Sexual Offences (Amendment) Act 1976 was passed. This expressly states that rape is committed where sexual intercourse takes place without consent. It does not, however, provides any definition of non-consent. The absence of a statutory definition coupled with the dearth of judicial authority on the matter results in a situation in which the parameters of consent are by no means clear. Thus, it is uncertain as to what extent consent may be regarded as absent when the defendant uses neither violence nor the threat of it. It is unclear as to the degree of consent required with respect to children or those of subnormal intelligence.
In England, according to the present legal definition, ‘rape’ is committed if a man has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it.
In Canada, in connection with the crime of sexual assault, section 265(3) of the Canadian Criminal Code provides:
“For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of . . .”
It is submitted that submission or failure to resist is not, of course, itself consent although in proper circumstances it may be evidence of consent. For example, it can hardly be suggested that a sleeping woman who is sexually assaulted consents because she does not resist. On the other hand, where a woman is touched and responds in an inviting manner, it is clear to say that there was a consent. In other words, in constituting a full charge of rape the prosecution must prove that the sexual penetration takes place without the consent of the complainant notwithstanding whether there is any element of force, threat or fear of violence involve in the case or whether the complainant fails to protest or resist against the accused’s conduct.
For instance, in R. v. Pitt the accused maintained that while he had participated in various sexual acts with the complainant, they were all consensual. The judge defined “force” as “physical contact”. He directed the jury that there could be force without physical violence and that force was proved if they were satisfied the victim was touched. While dealing with consent, the judge instructed the jury that the Prosecution must prove beyond a reasonable doubt, that the complainant did not consent to the acts or if she did consent, the consent was obtained by force.
Similarly, in Australia, rape requires proof that sexual intercourse occurred without the consent of the complainant. Thus, it is not necessary for the prosecution to prove that sexual intercourse occurred against the will of the complainant. Proof of physical resistance is also not required. This is expressly provided in the Australian Capital Territory, New South Wales, South Australian and Western Australian legislation.
The Northern Territory and Victorian statutes go further and provide that in a relevant case the judge must direct the jury that a person is not to be regarded as having consented because he or she did not protest or physically resist or sustain physical injury.
Hood J. in R. v. Bourke said:
“The offence of rape involves no element of force or violence whatsoever. All that need to be shown is that the absence of consent on the part of the woman.”
Similarly in R. v. Maes, the judge directed the jury:
“The crime of rape, consists of the carnal knowledge by a man of a woman without her consent. Now it does not say against her will. It says without her consent and you will readily appreciate the difference between those two states of affairs. “Consent” requires an active acquiescence and knowledge of what is going on. “Against her will” is a very different proposition altogether. I need to remind you that submission is not consent.”
In New Zealand, the definition of sexual violation in section 128 of the Crimes Act 1961 simply requires that the standard of consent is “without her consent” and not “against her will”. The general rule is that where a person acquiesces because of fear that otherwise force or violence will be applied to herself, himself, or another person, it seems that “consent’ is vitiated, even if it may not be fear of serious harm, and even if there was no threat from the accused.
Section 128A(1) of the New Zealand Crimes Act 1961, expressly provides that absence of protest or resistance does not by itself constitute consent. In explaining the nature of consent, Moore J. in R. v. C said that the fact that a person has by words or actions refused to participate in sexual activities, or has resisted in a physical sense such activities, by words or by conduct, is evidence of a lack of consent. It is important to note that there is a difference between not wanting to engage in sexual activity and consenting or agreeing to it. The material time is when the act in question occurs. It is necessary to be very mindful of the circumstances that a true consent can be given reluctantly, hesitantly, sometimes even tearfully, and it may be regretted afterwards. The law specifically provides that the fact that a person does not protest or offer physical resistance to sexual connection does not by itself constitute consent and consent is something positive. What the law prohibits are sexual activities without consent and the Prosecution has got to show is that there was a lack of consent by the recipient of the sexual attention.
Similarly, Somer J. in R. v. Barlow, stated that a person who fails or ceases to resist because of fear of bodily harm or because of threats is not to be regarded as consenting. For instance, a person who fails or ceases to resist when resistance or further resistance is futile is also not to be considered as a consenting party.
It is observed from the above cases that New Zealand courts approached the question of consent from purely evidential, circumstantial and conceptual aspects. A submission without resistance with full knowledge of the physical, surrounding circumstances and moral nature of the act is deemed to continue consent, provided that there were no threat, compulsion, emotional and psychological pressures.
In Malaysia, section 375 of the Malaysian Penal Code provides that in order to establish the guilt of the accused in rape the following clause is essential for conviction:
“ that the accused had sexual intercourse with the complainant which was against her will or without her consent.”
The above section requires that sexual intercourse occurs “against the will of the complainant” or “without her consent”. Does this section require the application of force or violence by the accused and physical resistance by the complainant?
The main issue at rape trial in the case of Augustine Foong Boo Jang v. PP , was consent. The court observed that the reason why the complainant failed to resist was because her resistance might prejudice her position and her employment.
The court referred to the English case of R v. Olugboja and pointed out that it is now clear that lack of consent is the crux of the case and this may exist though no force is
used. The general rule now is not whether the act was against the complainant’s will but whether it was without her consent. Therefore, it is, legally wrong to assume that the complainant must show signs of injury or that she must always physically resist before there can be a conviction for rape under section 375 of the Penal Code.
In the case of Public Prosecutor v. Emran bin Nasir, the prosecution case was that the accused had sexual intercourse with the complainant without her consent or against her will.
Robert C.J. said:
“I believe that, when confronted by a police officer who behaved as the accused did, the complainant did not know how to react. And that, when he started to remove her pants, she was paralyzed with fear and incapable of resistance. I am sure that she submitted, but am equally certain that she did not consent. I find that the accused forced himself upon her and that the sexual intercourse which took place was without her consent.”
The court held that it would be sufficient if the prosecution was able to establish either the sexual intercourse took place without her consent or against her will.
Therefore, it is submitted that the clause “against her will” in section 375 of the Penal Code is evidently intended to refer to a fully conscious normal person-one who is in full possession of her senses and reason, and is capable of exercising her resistance. The terms “will” and “consent” would, ordinarily, refer to the same act of the mind. They are both functions of volition, but as the term “consent” is susceptible of some variation in construction, and may include a subsequent consent which the word “will” necessarily excludes, the legislator has thought fit to couple it with the word “will” which is that faculty or power of the mind by which we determine either to do or not to do something. It implies consciousness, cognition and mental determination.
Conclusion.
Before the middle of nineteenth century, judges would direct the juries that rape was sexual intercourse against a woman’s will by force, fear or fraud. After rape ceased to be capital offence in 1841, the definition of rape was widened to include cases where sexual intercourse had taken place without the woman’s consent even though there had been no force, fear or fraud. Non-consensual sexual intercourse with a woman when she had been rendered insensible by drink and when she was asleep were held to be rape. Therefore, at present although the use of force often present in rape cases, it is no longer an essential legal ingredient. The prosecution must prove that at the time of the sexual penetration the complainant did not consent to the act. Thus, submissions induced by force or fear of force and other recognized pressures cannot be considered as a valid consent.
It is observed that there appeared to be some confusion of legal and factual issues in determining the standard of consent in rape. The legal issue is that not every submission involves consent. This legal standard is applicable to all cases involving allegations of non-consent. The factual issue is that did the complainant in a particular case really consent and not just merely submit. Thus, it is suggested that this is a question of fact for the court to consider in light of the surrounding circumstances of the purported non-consent, and the facts as age and physical strength, general disposition may be relevant.
For instance, if the complainant is a fully physically and mentally developed and conscious when the attack commences, submits, there may be no consent. Obviously, a woman may submit, declining to struggle or attempt to run away or cry out, thinking the best policy is to lie still, suffer the attack and escape with a little physical damage as possible. The woman may doubt her ability to escape or summon help; she may wish not to antagonize her assailant by attempting to rebuff him; she may be of the opinion that to be raped, or to lose her life at the hands of the assaulting party; she may consider that in the area of all other attacks she would be legally right that she has no duty of self-defence.
Stephen CJ in R. v. Black Bob, said:
“If there is anything which leads the accused to think that the complainant consents, there ought to be an acquittal, but although the law requires a woman so to act that she must lead the man to know that she resists, it does not require that she should by her violent conduct induce the man to murder her.”
It is recommended that in applying and determining the standard and quality of consent in rape and other sexual cases, it is a matter for the court to decide with the assistance of some legal directions or statutory provisions. It is believed that this approach can be helpful in making a wise and just decision, as a matter apart from the facts of the particular case, whether the complainant’s actions (not resisting at all) or reactions (the lack of protest or fighting back), or general demeanour denote consent or lack thereof (without her consent or against her will).
. See Hale, The History of the Pleas of the Crown (1736) vol.1 635.
. It is admitted that struggle may signify lack of consent. The credibility of the complainant is to be left to the court, being supported amongst other matters by showing of “circumstances and signs of injury”; however although the difficulties of showing lack of consent in the absence of outward signs is evident, submission should not automatically be taken as consent, nor as evidence of consent, whatever the physical strength or mental ability of the complainant.
. See Scutt J.A., ‘The Standard of Consent in Rape’ (1976) NZLR 462, 464.
. See Vicki Waye, ‘Rape and the Unconscionable Bargain’ (1992) 16 Criminal Law Journal 94, 96.
. Ibid. 46. Similarly in the Australian case of R. v. Hinton [1961] Qd R 17, the evidence to be focused on was: Did she cry or scream for help? Did her body or clothing show any mark or tear indicating resistance to force? And negative answers to such questions should carry a strong presumption of false or feigned testimony by the complainant. Often the jury is directed that without such evidence consent must be or should be assumed.
. (1965) 50 Cr. App R. 56.
. That is, where she is unconscious or is so mentally subnormal or abnormal as to be incapable of comprehending and consenting.
. (1981) 73 Cr. App. R. 344.
. The case of R. v. Olugboja represents the current approach in English law to the standard of consent in rape.
. (1965) 50 Cr. App R. 56.
. See e.g. R. v. Hallet (1841) 9 C. & P. 748.
. See e.g. R. v. Anthony (1958) Cr. L.J. 564.
. Report on the Advisory Group on the Law of Rape (London. 1975) para. 21.
. Section 1(2) of the Sexual Offences Act (UK) 1956 provides “A man commits rape if (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it
. The prosecution must prove that at the time of the sexual intercourse the woman did not consent to such act. See e.g. R. v. Bradley (1910) 4 Cr. App. R. 225, a conviction for rape was quashed after the Commissioner at trial had failed to direct that the onus of proof was upon the prosecution to show that the girl had not consented; Smith and Hogan, Criminal Law (8th edn 1996) 469.
. (a). the application of force to the complainant or to a person other than the complainant (b) threats or fear of the application of force to the complainant or to a person other than the complainant (c). fraud, or (d) the exercise of authority.
. See Mewett & Manning, Criminal Law (3rd. edn. 1994) 154. In R. v. B. (L.), unreported June 7, 1996, Supreme Court 95-00301B, held that a victim is not required to offer resistance and lack of resistance is not to be equated with consent; R. v. Fast (1996) 113 Man. R. (2d) 52, it was held that submission or failure to resist cannot amount to consent.
. See e.g. R. v. Firkins (1977) 37 CCC (2d) 227.
. (1993) 79 CCC (3d) 405.
. Simon H. Bronitt, ‘Rape and Lack of Consent’ (1992) 16 Criminal Law Journal 289, 290. See also Vicki Waye, ‘Rape and the Unconscionable Bargain (1992) 16 Criminal Law Journal 94.
. Section 92P(2) of the Crimes Act 1900 (ACT), section 61R(2)(d) of the Crimes Act 1900 (NSW), section 48 of the Criminal Law Consolidation Act 1935 (SA), section 319(2)(b) of the Criminal Code (WA) provides that mere failure to offer resistance does not constitute consent.
. Section 192A of the Criminal Code (NT) and section 37 of the Crimes Act 1958 (Vic) .
. Ibid. See also R. v. Burles [1947] VLR 392 it was held that the crime of rape consists in having unlawful carnal knowledge of a woman without her consent and not against her will. Therefore force in the ordinary sense need not be proved; Papadimitripoulus v. R (1957) 98 CLR 249, it was held that rape is carnal knowledge of a woman without her consent. It is the consent to the act which is in question upon the indictment for rape; R. v. Schell [1964] Tas. SR 184.
. This replaces the crime of rape, introducing entirely new concepts rather than merely extending an existing one. Sexual violation includes rape. Section 128 (2)(a) provides that a male rapes a female if he has sexual connection with that female occasioned by the penetration of her vagina by his penis without her consent. . .”
. See e.g R. v. Ogilvie, unreported, 15 Febuary 1996, CA478/95; R. v. Candy, unreported, 17 September 1997, CA209/97; R. v. Parker, unreported, 02 October 1997, CA286/97; R. v. Hollander, unreported, 25 February 1998, CA440/97.
. Section 128A(2)(a)(b) of the New Zealand Crimes Act 1961.
. [1995] 2 NZLR 330, in this case the complainant is too young to understand the significance of what is about to happen, or what is happening, is not in law able to give such a consent because of that lack of understanding. Therefore, his non-protest or non-resistance to the sexual activities could not constitute real consent.
. (1986) 2 CRNZ 171 (CA).
.Ibid. 172. See also R v Uiti CA294/82, the accused persons were charged and convicted to have entered the complainant's home and by means of physical assaults, threats, and violence, including the use of a knife. The young complainant had been dragged screaming into a car and beaten in order to overcome her resistance. She was raped at knife-point by each of the men. Similarly in R. v. Cole CA346/88, the complainant offered no resistance because of his state of intoxicated. There was no suggestion that he had consented. The accused was convicted under section 128B of the Crimes Act 1961.
. See e.g. R v Green (1986) 2 CRNZ 128; R v Tawera (1996) 14 CRNZ 290, in both these cases, although there was no physical resistance on the complainant’s part but on analysis, there was nothing in the complainant’s evidence, the surrounding circumstances, or the appellant’s evidence which objectively indicated that the complainant was not consenting.
. (1981) 73 Cr. App. R. 344.
. [1987] 1 MLJ 166, the accused, a police officer had assaulted and raped the complainant while she was in the police custody.
. See e.g. Kamumal v. State (1953) AIR Ajmer 12, 13.
. In 1841 the punishment was reduced to transportation overseas.
. It is submitted that submission without resistance is not necessarily tantamount to consent. The person assaulted may be too young to appreciate the nature of the act done or to do more than submit without actually consenting; and submission by a child in the hands of the older and stronger person, and possibly under the influence of fear of or a sense of constraining authority, has been held not to be equivalent to consent. Submission to an act of carnal intercourse by a quack doctor on the faith of his statement that he was performing a surgical operation was held not to amount to consent.
. Research confirms that the greater the resistance of the woman to the attacker in a rape situation, the greater the physical brutality used to subdue and overcome her in completing the act. See Amir, Patterns in Forcible Rape, (Chicago. 1971) 164; Ray, ‘Feelings and Attitudes of Raped Women of Bangladesh Towards Military Personnel of Pakistan’ (1973) Victimology vol. 5. 65, 69: “the stronger the women resisted attacks on their person, the higher became the proportion of violence and stronger became excitement of the offender” and at page 68: “in some cases, strong resistance on the part of victim also resulted in her being shot”.
. (1867) 7 SCR (NSW) (L) 120.
. See e.g section 128A of the New Zealand Crimes Act 1961 provides the matters that do not constitute consent to sexual connection.