The position was illustrated in a celebrated case of R. v. Olugboja14, 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. 15 However, in R. v. Larter and Castleton16 the defense counsels argued that the judge should give an express direction as in R v. Howard17 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.
18 It is no excuse that she was first taken with her own consent but later she was forced against her will,19 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.
"20 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. "21 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. 22 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 it23.
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 . . . "24 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. 26 For instance, in R. v. Pitt 27 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. 28 This is expressly provided in the Australian Capital Territory, New South Wales, South Australian and Western Australian legislation. 29 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. 30 Hood J. in R. v. Bourke31 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. "32 Similarly in R. v. Maes33, 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. "34
In New Zealand, the definition of sexual violation in section 128 of the Crimes Act 196135 simply requires that the standard of consent is "without her consent" and not "against her will". 36 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. 37 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 38 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. 39 Similarly, Somer J. in R. v. Barlow40, 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. 41 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 43, 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. Olugboja44 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 Nasir45, 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. " 46 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.
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 1841,48 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. 49 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.