A Victim's Mistaken Consent in Rape
| Author | David Ormerod |
| Published date | 01 November 1992 |
| Date | 01 November 1992 |
| DOI | http://doi.org/10.1177/002201839205600407 |
| Subject Matter | Article |
A
VICTIM'S
MISTAKEN
CONSENT
IN
RAPE
David
Ormerod"
When a defendant deceives a woman in a manner which enables him to
have intercourse with that woman, is it rape, or the less serious offence
under s 3 of the Sexual Offences Act
1956?1
For it to be rape, the woman
must have not consented.' But what exactly must she have not consented
to? The law in this area is far from clear, and it is proposed to examine a
possible solution provided by the case of RvMobilio' in the Supreme
Court of Victoria.
CURRENT
APPROACH
The traditional English approach in this area requires that the woman be
mistaken as to the 'nature and quality of the act'. The familiar case of Rv
Flattery' is clear authority for this. Flattery was a quack doctor who told
his 19-year-old patient that she would be cured if he were permitted to
'break nature's string'. The victim had no comprehension of what this
entailed, and allowed him to have intercourse with her. The defendant
was convicted of rape and his conviction was upheld on appeal as he had
deceived the victim as to an essential element of the act. The nature of
the act she was assenting to was entirely different from that which was in
fact occurring.
At its most simple, if the victim does not realise that the act involved is
sexual intercourse then she has not consented.
The
term nature and quality
of the act if not further defined, so that it is unclear what the 'nature and
quality' of sexual intercourse actually is.
Mobilio attempts to explain this issue more fully.
It
is established that for a woman to have the knowledge of a man's proposed
•Lecturer in Law. Nottingham University.
ISection 3 of the Sexual Offences Act 1956 provides
'It
is an offence for a person to
procure a woman, by false pretences or false representations, to have unlawful sexual
intercourse in any part of the world.'
2
One
element of the actus reus of rape is that the woman is not consenting to the act of
intercourse. This is a different issue from whether the defendant intended or was reckless or
was mistaken as to the victim's consent. That is an issue of mens rea. Here we are not
concerned with whether the defendant intends or is reckless as to whether he has the consent
of the victim. We are concerned with whether there was consent in fact and in the strict legal
sense. The relationship between consent and submission is not relevant here, save to note
that it is established that submission docs not amount to consent. What is of direct concern
here iswhen the victim makes a mistake, as to the act she isinvolved in, of such a fundamental
character as to render the 'consent' invalid.
, (1991)VR 339.
• (1877) 2 QB 410; see also RvCase (1850) 4 Cox CC 220; RvWilliams (1923) I KB 340.
407
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