R v Olugboja

JurisdictionEngland & Wales
JudgeLORD JUSTICE DUNN
Judgment Date17 June 1981
Judgment citation (vLex)[1981] EWCA Crim J0617-1
Docket NumberNo. 4875/A/79
CourtCourt of Appeal (Criminal Division)
Date17 June 1981
Regina
and
Stephen Olubunmi Olugboja

[1981] EWCA Crim J0617-1

Before:-

Lord Justice Dunn

Mr. Justice Milmo

and

Mr. Justice May

No. 4875/A/79

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

MRS. D. TREWELLA appeared on behalf of the Applicant.

MR. M. BRENT appeared on behalf of the Crown.

LORD JUSTICE DUNN
1

In this case we grant leave to appeal against conviction and we treat the hearing of the application as the hearing of the appeal.

2

The question of law raised by this appeal is whether to constitute the offence of rape it is necessary for the consent of the victim of sexual intercourse to be vitiated by force, the fear of force, or fraud; or whether it is sufficient to prove that in fact the victim did not consent.

3

The offence of rape was defined for the first time by statute in 1976 Section 1 of the Sexual Offences (Amendment Act) 1976 amended Section 1 of the Sexual Offences Act 1956 by providing as follows: "For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if - (a) he has unlawful Sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; and references to rape in other enactments (including the following provisions of this Act) shall be construed accordingly."

4

In this appeal it is not disputed that the appellant had sexual intercourse with Jayne. The only questions for the jury were whether she had consented, and if she had not whether the appellant knew she had not or was reckless as to whether she consented or not. In this appeal we are only concerned with the actus reus and not with the mens rea of the appellant.

5

The appellant, who is a Nigerian, aged 20 at the time and studying at Oxford, had sexual intercourse with Jayne, then aged 16, on 8th March, 1979, at the bungalow of his co-accused Lawal. She had been taken there with her friend Karen (aged 17) with Lawal in a car driven by the appellant from a discotheque in Oxford where they had all been dancing. Lawal had offered the girls a lift home, but the appellant had driven them to the bungalow which was virtually in the opposite direction from where they lived. This was a deliberate trick to get them to the bungalow. When they got there both girls refused to go in, and started walking away. They did not know where they were. Lawal followed them in the car, and after some argument they got in. After a further argument Karen again got out, and, as she was trying to get Jayne out, Lawal drove off, stopped in a lane, and raped Jayne.

6

Lawal then drove back to the bungalow, picking Karen up on the way, and the three of them went inside. The appellant was there lying on the sofa asleep, and saw them arrive. Jayne was the last to come in. She was either crying, or obviously had been. Music was put on. Jayne declined to dance. She went to the lavatory and returned to find Lawal dragging Karen into the bedroom. The appellant switched the sitting-room lights off and told Jayne that he was going to fuck her. She told him that Lawal had had her in the car and asked why could the appellant not leave her alone. He told her to take her trousers off and she did because she said she was frightened. She was still crying and the room was in darkness. The appellant pushed her on the settee and had intercourse with her. It did not last long. She did not struggle; she made no resistance; she did not scream or cry for help. She did struggle when she thought after penetration that the appellant was going to ejaculate inside her, and he withdrew. She put her clothes on and the other two emerged from the bedroom, where Lawal had raped Karen. The appellant and Jayne then went into the bedroom. She told him she was going to call the police. He said that if she opened her big mouth he would not take her home. He later did.

7

Once home Jayne made a complaint to her mother about Lawal but not about the appellant. She said later she did not know why she did not complain to her mother about the appellant. She supposed that she was more upset "about the first one", meaning Lawal.

8

After she had made her complaint to her mother about Lawal she saw the police and a doctor, with whom she spent a total of eight hours. She made no complaint against the appellant; indeed she said he had not touched her.

9

The police initially saw the appellant as a witness to the complaints by both Jayne and Karen with regard to the rapes on each of them by Lawal. In the course of the interview the police said to the appellant that Lawal had said that he, the appellant, had had sexual intercourse with Jayne. When they put that to him, Jayne had made no complaint against him. The appellant at once admitted he had had sexual intercourse with Jayne and in answer to the question: "Did she consent?", he replied: "Well not at first but I persuaded her". At the end of the interview the appellant made a written statement. The police then saw Jayne who said that the appellant had indeed had intercourse with her against her will. The police then went back to see the appellant and put to him what Jayne had said. There followed a further long and detailed interview.

10

At the trial a submission was made at the conclusion of the case for the Crown on behalf of the appellant that there was no case to answer. The judge ruled that the case should go to the jury. The appellant did not give evidence, and relied on his statement to the police as constituting his defence.

11

The judge dealt with the question of consent in his summing-up in a number of passages. At page 6 he said: "The question of consent is a question of fact for you to decide, approaching it in a commonsense way. You are concerned, are you not, with the field of human sexual behaviour and in particular in this case, teenage sexual behaviour? You have to consider it in a commonsense way applying your own experience or knowledge of human nature and your knowledge of the ways of the world".

12

Then at page 7 he said: "Sometimes a woman gives in and submits out of fear, or constraint, or duress."

13

These directions were quite general in relation to both girls.

14

In relation to Jayne the judge said, at page 65: "You will consider her evidence very carefully and decide whether or not there were any constraints operating on her will, so that you are satisfied that in taking her trousers down, and letting him have sexual intercourse with her, she was not, in fact, consenting to it."

15

At page 75 the judge said: "Members of the jury, you are concerned with what was the reason? Was it circumstances in which she was consenting, or was it circumstances in which there was constraint operating on her mind, fear or constraint, so that in doing that, she was doing it without her consent."

16

Finally, at page 102, the judge said: "Let me remind you finally that the defence point out that it is not a case where the girl was struggling or screaming. Unless what was said about intercourse and then going home contained any implied threat in it, no threats were uttered; certainly no threats of force or violence, or anything of that sort. The defence say this girl removed her own trousers and that was in itself an open invitation to sex. That of course depends on why and in what circumstances she removed her trousers. Was it because she was consenting, or was it because she was giving in out of fear or constraint, so that she was removing her own trousers without consent? It is a matter for you to decide".

17

The appellant was convicted of rape by a majority of 11-1 and sentenced to 30 months' imprisonment.

18

Mrs. Trewella, in a series of very able submissions, said that these statements by the judge constituted a misdirection. She submitted that the statutory definition of rape introduced by the 1976 amendment into section 1 of the Sexual Offences Act 1956 was declaratory only, and had not changed the common law where by the type of threat that vitiates consent is limited to threats of violence either to the victim or as in duress to some close or near relative. She relied in support of that submission on a number of cases going back to the middle of the last century: R. v. Hallett (1841) 9 C. & P. 748; R. v. Day (1841) 9 C. & P. 722; R. v. Wright (1866) 4 F. & F. 967; R. v. Mayers (1872) 12 Cox 311; and by analogy Latter v. Braddell (1881) 50 L.J. (N.S.) 166, where a domestic servant whose mistress had insisted that she be examined for pregnancy by a doctor was held to have no cause of action in assault because, although she was tearful and did not wish to be examined, no force or violence or threat had been used to persuade her to undergo the examination.

19

Mrs. Trewella also relied on two more recent cases, R. v. Howard (1966) 1 WLR 13, and R. v. Lang (1976) 62 Cr. App. R. 50, where it was held that sexual intercourse after submission induced by force or the threat of force was the classic example of rape. She also relied on a case decided by Winn J., reported in the Times newspaper as a news item, on 19th December, 1961, where the judge appears to have withdrawn from the jury a case where a police constable was charged with rape on the basis that he had threatened the victim that he would report her for an offence unless she had sexual intercourse with him which she did. Mrs. Trewella submitted that in that case there was certainly a constraint on the will of the victim but she did not submit by reason of force or the threat of force.

20

Mrs. Trewella accepted that submission by the victim did not necessarily involve consent, but the submission must be induced...

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27 cases
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    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 1 May 1998
    ...are still good law and should have been followed and applied by the judge. These decisions have not been superseded by the case of R -v—Olugboja 73 Cr App R 344 which merely stated that the actus reus of the offence of rape was an act of sexual intercourse to which the complainant did not c......
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24 books & journal articles
  • A Different Ball Game—Why the Nature of Consent in Contact Sports Undermines a Unitary Approach
    • United Kingdom
    • Journal of Criminal Law, The No. 71-6, December 2007
    • 1 December 2007
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    • International Journal of Evidence & Proof, The No. 9-1, January 2005
    • 1 January 2005
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    • Journal of Criminal Law, The No. 80-6, December 2016
    • 1 December 2016
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