R v Olugboja

Facts

The complainant was a young woman of sixteen who had intercourse with the defendant. She did not struggle or call out and no force or threat of violence was used against her by the defendant, but she said that she submitted because she was frightened of the circumstances in which she found herself and did not agree to what happened.

History

The defendant was convicted of rape by a jury in the Crown Court. He appealed to the Court of Appeal on the ground that the judge had not directed the jury correctly on the meaning of consent.

Issue

What is meant by lack of consent in the offence of rape under the Sexual Offences (Amendment) Act 1976, and whether the absence of consent requires proof of force, threats of force or fraud.

Held

Appeal dismissed and the conviction upheld. The judge directions had been right to leave the question of real consent to the jury, distinguishing it from mere submission.

Ratio

• Consent is a state of mind that the jury must judge in the light of all the circumstances; the word has its ordinary meaning and is not confined to cases where the intercourse was obtained by threats or force or by fraud.
• There is a difference between consent and submission: every consent involves a submission but a mere submission does not involve consent, and the jury must consider the state of mind of the complainant at the time and the degree of her freedom to choose.

Key reasoning

• The court considered the earlier law, which had spoken of consent being vitiated by force, fear of force or fraud, and held that these were examples and not a closed list of the ways in which consent could be absent.
• The jury were to be directed to focus on the state of mind of the complainant immediately before the act, and to consider all the evidence, including the circumstances, any threats or pressure, and the extent to which she resisted.
• A broad direction was consistent with the statutory definition, which referred to a woman who at the time of the intercourse did not consent, without further limit.

Where it fits in the module

In the Sexual Offences topic the case is read as the origin of the debate about the meaning of consent, which the Sexual Offences Act 2003 later addressed by defining consent in terms of freedom and capacity to choose and by listing evidential and conclusive presumptions. It is used to ask whether a flexible jury question is preferable to a detailed statutory test.

Criticisms

• Leaving consent to the ordinary meaning gives the jury little guidance and risks inconsistent outcomes in cases involving pressure short of force.
• The distinction between consent and submission is hard to apply and may require the complainant to explain her mental state, which places weight on her evidence and conduct.
• The decision was criticised for shifting the focus onto the complainant state of mind rather than the conduct of the defendant, and for leaving unclear what kinds of pressure are enough.