Mens Rea: Consent, Freedom + Capacity, Belief, and Intention
The question of consent in the offence of rape is two-fold:
- whether consent was present (i.e. did the victim consent to the act in question?); and
- whether there was a belief in consent (i.e. did the defendant have a reasonable belief that the victim was consenting?).
Both of the elements must be proved to establish the offence of rape.
Definition of Consent, section 74 SOA 2003:
“A person consents if he agreed by choice, and has the freedom and capacity to make that choice”.
Proving the existence or absence of consent is a complicated matter. Fortunately, the new law provides more guidance on determining the existence of consent, in contrast to the old law, where the jury had to decide the issue of consent on the basis of ‘good sense, experience and knowledge of human nature and modern behaviour’.
In the case of Olugboja, the court examined the distinction between consent and submission or reluctant acquiescence, stating that submission does not equate with consent.
Belief in Consent
The defendant must have a reasonable belief that the complainant consented, as specified in section 1(c) of the SOA 2003. Subsection 2 states that whether a belief is reasonable is to be determined based on the individual circumstances of each case, considering any steps that the defendant had taken to ascertain the complainant’s consent.
The penetration must be deliberate. The defendant must have penetrated the vagina, anus or mouth of the complainant deliberately.