Historically, the element of resistance which is in concert with the used of force by the accused – which a fully comprehending woman must show when sexual advances are made remains a vexed question. No doubt the vexations nature of the problem arises from prevailing social and moral attitude towards sexual relations. Perhaps due to acceptance of the sentiments of Sir Matthew Hale in his oft quoted statement: "It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved. "1
It is noted that the assertions that the important issue in a prosecution for rape is non-consent rather than active repulsion have in many cases tended to be quietly overlooked in the search for evidence of struggle by the complainant, struggle being regarded as essential factual evidence of non-consent, and often a lack of this factual evidence leading to the assumption that consent must have been given. 2 Indeed the framing of some judgments leads rapidly to the belief that the "without consent" construction is limited to cases of fraud or complete helplessness on the part of the complainant, unconsciousness, total mental incapacity.
On the other hand, where the woman is in full control of her faculties the "against her will" standard, interpreted as denoting "to the full extent of her possible powers of resistance" appears once more to receive recognition. 3 It is opined that the problem is exacerbated because in rape law the concept of consent applies in the negative. Logically, the absence of positive assent from the complainant ought to prove this element.
Nevertheless, even though physical opposition from the complainant to sexual intercourse is not a legal requisite, as a result of its negative burden it seems that the Prosecution has not only to show lack of assent but also manifest refusal or resistance. Even then, the complainant's stated refusal may not amount to dissent if the refusal appears sufficiently ambiguous, this is due to the fact that lack of consent must be established beyond reasonable doubt, thus failure to dissent will often be resolved in the accused's favour.
4 In other words, the above statement implies that in order for rape to be proven, the complainant has to be physically overborne to the degree that reasonable persons would have felt powerless to resist. In the English cases of R. v. Dimes5, the accused was charged for committing both rape and incest, the complainant is his sister. The complainant contended that she did not consent, that she resisted and tried to get away, being prevented from doing so by the greater strength of her brother.
The judge directed the jury that they should not convict of rape unless they were satisfied with the proof given that the accused had acted violently and against the will of the complainant; he also pointed out (in the accused's favour), that no screams were heard by those nearby (yet the complainant had not even alleged that she screamed), an bruises were discovered on the thighs of the complainant, and there were no other signs of severe struggle. As a result of this summing up, the jury found that there was no sufficient evidence that the girl was raped, but did not find she was consenting to the sexual intercourse.
In discussing this verdict, the Court of Criminal Appeal pointed out: "It was open to the jury to believe that the complainant offered some resistance and eventually submitted, without consenting in the sense of acting of her own free will. There is a distinction between submission and permission. If the jury had found that she consented, she would of course have been an accomplice (to the act of incest). But there is no finding to this effect, nor are we at liberty to infer from the findings that she did in fact consent"6
It is commented that in legal terms both the decision of the jury and the comment upon that decision by the Court of Appeal are wrong. This is due to the fact that if the complainant did not consent, then the act was rape and if she "eventually submitted without consenting in the sense of acting of her own free will" the act was also rape. In the present case, as there was no finding to the effect that the complainant consented, in terms of the legal definition of the crime, the act was rape.
Therefore the absurdity of the jury's verdict appears to rise directly from the judge's direction that a rape conviction should not be made without evidence of violence and of physical resistance evidenced by severe bruising. Similarly, in Morrow v. State7, Hill CJ, held that to constitute the crime of rape two legal requirements must be fulfilled; the man must use force in accomplishing his intent and the act must be without the consent and against the will of the complainant. He went on to say:
"The woman's resistance must not be a mere pretext, the result of womanly reluctance to consent to the intercourse, but the resistance must be up to the point where it is overpowered by actual force. If a woman apprehensive of the purpose of a man to have carnal knowledge of her person, and, remaining conscious, does not use all her own powers of resistance and defense, and all her powers of calling others to her aids, and does yield before being over-come by greater force, or by fear or being surrounded by hostile numbers, a jury may infer that, at some time in the course of the act, it was not against her will.
"8 In R. v. Howard 9, Parker C. J. said: "In the case of a minor or young person, the prosecution in order to prove rape must prove either she physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist. "10 Similarly in R. v. Harling11, it was stated: "In every case of rape it is necessary that the prosecution should prove that the complainant did not consent and that the crime was committed against her will.
It may well be that in many cases the prosecution would not need to prove much more than the age of the girl, and in this case that fact, coupled with the fact that the girl was a weakling, is enough to prove that there was no consent on her part"12 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 consent13, 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.