Академический Документы
Профессиональный Документы
Культура Документы
Vol 16 No 3
November 1996
Legal Studies
Appreciating Olugboja
Simon Gardner
Lincoln College, Oxford'
276
Legal Studies
expense of values such as determinacy and the wish to treat like cases alike;
whilst in the earlier cases the emphasis was more on the latter values, to the
neglect of victims' perceptions of their own interests. Despite the fact that
Olugbojais recognised as the leading contemporary authority on the subject, it
was in fact the view taken in the earlier cases that was followed2 in three more3
recent decisions by the Court of Appeal, R vLarter and Castleton, R vElbekkay,
and R vLinekar,4 as well as in the Law Commission's 1995 Consultation Paper,
Consent in the CriminalLaw.' In none of these more recent treatments do the
alternative possibilities, and the arguments for and against them, seem to have
been adequately discerned, however. An appraisal may therefore be worthwhile.
The decisions before Olugboja addressed the offence of rape as it was defined
at common law.6 A statutory definition of rape was introduced for the first time
by the Sexual Offences (Amendment) Act 1976, s 1(1), 7 of which the relevant
element is a requirement that the intercourse be with a woman 'who at the time
of the intercourse does not consent to it'. It was this definition that prevailed at
the time of Olugboja itself and also of the three new decisions. The formulation
of the 1976 definition was proposed by the Heilbron Committee, which thought
it merely codified the prevailing common law position.8 However, the Court of
Appeal in Olugboja,9 whilst thinking that that was probably the effect of the Act,
was prepared to hold if necessary that the 1976 enactment represented a fresh
start to the law's conception of rape, and was to be interpreted and applied in its
own right, without any supposition that the outcome would be the same as under
the previous common law rules.
Section 1(1) of the 1976 Act has more recently been repealed by the Criminal
Justice and Public Order Act 1994, Sch 11, and replaced by the definition
provided by s 142 of that Act.10 The major change introduced by the 1994 Act is
2. Judgment delivered 1July 1994; reported only, non-verbatim, at [1995] Crim LR 75.
3. Judgment delivered 12 September 1994; reported only, non-verbatim, at [1995] Crim
LR 163.
4. [1995] QB 250.
5. Law Commission Consultation Paper No 139, Consent in the Criminal Law
(1995). See Part VI, especially paras 6.12-6.13 and 6.39.
6. Whilst rape was a statutory offence under the Sexual Offences Act 1956, s 1, its
definition was left to the common law.
7. As follows:
...
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 the time he knows that she does not consent to the intercourse or he is reckless as
to whether she consents to it ...
8. Report of the Advisory Group on Rape (1975, Cmnd 6352) paras 81, 84.
9. [1982] QB 321, 331 E-G. See too R vR [1992] 1AC 599 (dealing with the question
whether the word 'unlawful' means that rape cannot be committed when a man has
intercourse with his wife), andR vPigg [1982] 1 WLR 762 (dealing with mens rea), which
both regard the 1976 Act as making a fresh start. In the latter context, however, compare
R vSatnam andKewalS (1984) 78 Cr App R 149, where the Court of Appeal decided to
resort to pre-1976 material after all.
10. Section 142 operates by establishing a new section 1 for the Sexual Offences Act
1956, as follows:
Appreciating Olugboja
277
278
Legal Studies
of 'real consent' is presumably that of the woman who agrees to intercourse out
of love or desire for the man, and who understands what she is doing. But it
seems that the facts can depart somewhat from this ideal without leaving the
area of 'real consent', for according to the court consent 'covers a wide range of
states of mind in the context of intercourse between a man and a woman, ranging
from actual desire on the one hand to reluctant acquiescence on the other'.
However, there comes a point at which the woman's state of mind will be so
different from the ideal that she can no longer be said to give 'real consent', but
must be described instead as giving 'mere submission'. The court leaves the task
of fixing that point to the jury, 'applying their combined good sense, experience
and knowledge of human nature and modem behaviour to all the relevant facts
of [the] case'. 19 It seems to be implicit, however, that the jury are to accept the
analysis of consent up to that point.
The court held that the terms of the judge's direction were close enough to
this approach, 20 and that the relevant evidence was sufficient, 2' that it was safe
to accept the jury's finding that the victim did not consent. It therefore affirmed
the defendant's conviction.
The ideas employed
On the one hand, then, the reasoning in Olugboja appeals to the ordinary meaning
of consent, in order to see off the argument that consent has a special legal
meaning whereby (amongst other things) only certain forms of pressure qualify
to negate it. On the other hand, that reasoning asserts that consent in its ordinary
meaning is a state of mind, and that a person can be said to possess that state of
mind notwithstanding that she feels pressured, so long as her feelings are on the
right side of the point at which consent turns into submission.
There is some difficulty about this. We have only the court's word for it that
the ordinary meaning of consent does follow those lines. The ordinary meaning
may just as well follow the approach of the legal rule contended for by the
defendant, and regard consent not as a state of mind at all, but as consisting in a
person's saying 'yes' in the absence of certain, standardly identified, forms of
pressure (or other vitia). In fact, it seems highly unlikely that the ordinary
meaning of consent is so well honed as to give any firm message on this point,
whether on the lines of either of these approaches, or indeed of any further
possibility.
not. This use of 'submission' is (pace the Court of Appeal, [1982] QB 321, 332B) quite
different from that adopted in Olugboja, where it refers to the second of these subsets
(albeit that the content which Olugboja,with its attention to the degree of felt pressure,
gives that subset may not be the same as that which Coleridge J would have
recognised). The Olugboja usage is the more natural to us today, but Coleridge J's is
hardly surprising for its date and milieu.
18. [1982] QB 321, 331H.
19. Ibid at 332E.
20. Ibid at 332F. Sed quaere. The trial judge seems to have equated 'consent' with the
absence of 'any constraint' (see at 327E-328B, especially 327F). Are not some instances
of felt constraint within the catchment of 'reluctant acquiescence', which, as noted above,
the Court of Appeal regard as a form of 'real consent'?
280
Legal Studies
Behind this view of consent is presumably the thought that we must, in the
reality of life, be prepared to commit ourselves to courses of action for reasons
which we view with regret, and not expect on that account to dissociate ourselves
from those actions. Perhaps a case can be made for the proposition that any degree
of unwillingness negates true agency, but since it appears that very many of the
decisions which we in fact take in the real world are compromised, to espouse
such a case would only leave us wanting to supplement agency with a further
concept of moral association which did cater for such decisions. Certainly as a
generalisation, then, the thinking in Olugbojaseems broadly supportable, though
perhaps it should be implemented more sympathetically as regards engagement
in sex than as regards some other kinds of activity.
Thirdly, it is implicit in the bounding of consent by reference to the victim's
feelings ('state of mind') that one victim's agreement to intercourse under
pressure might constitute consent while another's constituted only submission,
even though both were faced with the very same source of pressure in the very
same circumstances. (This is why this article, when describing the Olugboja
approach, tends to refer to 'felt pressure' rather than simply 'pressure'.) To be
sure, all those threatened with death or injury are likely to experience feelings
which juries are likely to construe as mere submission. But take the case where
a man induces a woman to have intercourse with him by threatening to inform
her fianc6 that she has been a prostitute; or the case where he promises to give
her a job if she will have intercourse with him.26 It is realistic to imagine that
different women in such situations - even different women with identically lurid
pasts and identically susceptible fiancds, or identical prospects of alternative
employment and identical abilities to survive unemployment- could experience
differing degrees of distress, as a function of their individual level of stoicism.
Under the Court of Appeal's analysis, therefore, it is quite possible that some
would fall one side of the line (established by the jury) between consent and
submission, whilst others fell the other side.
As a result of this feature, the handling of consent in Olugboja displays a
particularly acute form of the prevailing modem perception, that the offence of
rape should protect sexual autonomy, as distinct from other kinds of interests
such as freedom from aggression, albeit that in a particular case the latter may
also be incidentally affronted. 27 This focus upon protecting sexual autonomy was
not absent before Olugboja. Liability already arose where the victim was
unconscious, for example. 8 But the old rule (if such it was), whereby threats
only of death or violence negatived consent, could be seen as attending rather
to freedom from aggression than to sexual autonomy. Replacing it with a rule
whereby certain other kinds of threats had the same effect would in a sense have
moved the focus towards protection of sexual choice, but it would still have
26. The Court of Appeal in Olugboja mentioned these cases ([1982] QB 321, 328H),
but did not indicate whether it regarded them as cases of submission or consent. In terms
of the court's own approach, that is right, for the answer would depend on the reaction of
the particular victim concerned.
27. This perception is spelt out by J Temkin 'Towards a Modem Law of Rape' (1982)
45 MLR 399, 401: 'The overriding objective which ... the law ... should seek to pursue
is the protection of sexual choice, that is to say, the protection of a woman's right to choose
whether, when and with whom to have sexual intercourse.'
28. R v Camplin (1845) 1 Car & K 746; R v Fletcher (1859) Bell 63, 71; R v Mayers
(1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114.
282
Legal Studies
37. Attending to sexual autonomy directly, rather than to the mediating concept of a state
of mind, may however produce a different answer in two types of case involving felt
pressure and insensibility. Imagine a case where someone determines to have intercourse,
and then - say, to indulge her partner - renders herself or allows herself to be rendered
insensible. Or a case where she similarly determines to have intercourse and then (but
perhaps this is self-contradictory) allows herself to be coerced. Respecting her overall
choice seems to vindicate her autonomy better than focusing purely on her insensibility
or sense of grievous felt pressure during the penetrative part of the episode itself. In terms
of the Criminal Justice and Public Order Act 1994, s 142 (and before it the Sexual Offences
(Amendment) Act 1976, s 1(1)), the question is whether she consents 'at the time of the
intercourse'. It seems possible to argue that she does.
38. It should of course be remembered that such legitimacy is not a function of the profile
of rape alone; the offences in the Sexual Offences Act 1956, ss 5-7 are also in point. But
the scope, or indeed existence, of these offences turns on the same considerations as are
discussed in the text, and is similarly controversial. Even with these offences as they
are, moreover, the handling of the topic within rape has a powerful symbolic significance.
39. This is the essence of many of the complaints made against the decision of the House
of Lords inR vBrown [1994] 1AC 212. The difficulty in that case, however, was arguably
not simply to discern the dictates of sexual autonomy (these might be conceded to be to
allow the practices in question), but rather to weigh these against the countervailing
desideratum of suppressing a culture of violence. More germane, therefore, is the decision
of the House of Lords in Re F (MentalPatient:Sterilisation)[1990] 2 AC 1. There, it
Appreciating Olugboja
285
286
Legal Studies
who was severely retarded.4 3 More recently, in the direction approved by the
Court of Appeal in Larter and Castleton, it was said: 'the question is did [the
victim] at the material time understand her situation and was she then capable
of exercising a rational judgment?'" For all the variation in content, however,
the assumption is throughout that the jury will not be asked to address the anterior
question of where the line should be drawn. An essentially similar approach has
now been taken by the Law Commission.45 After noting that the object of the
exercise is to fix the right transition point between allowing sexual expression
and preventing exploitation (the anterior question), 6 the Commission suggests
fixing the transition point by a formula making rather full reference to the victim's
ability to understand or retain the information relevant to the decision in question
and to her ability to make a decision based on that information. 47
On the other hand, the concepts used in all these treatments appear to be
matters of degree, which still require legislative decisions to be made, by juries,
in individual cases. So it might be said that the effect of this approach is no
different from the approach apparently predicated by Olugboja,described above,
of leaving the jury to identify the point where autonomy is better protected by
proscribing sexual activity than by legitimating it. But this assessment might
not be accurate. Whilst the ideas of understanding and rational judgment are
certainly part of the apparatus by which one might identify that point, reference
to them alone does not offer a clear presentation of what is at stake, in that they
contain no allusion to the countervailing importance of allowing sexual activity
to such persons. Moreover, speaking in terms of understanding and rational
judgment, rather than sufficient understanding and sufficiently rational judgment,
might easily lead a jury to think that they were being told, as a matter of law, to
override the victim's choice whenever these faculties were perceptibly impaired
at all. And that might by no means be the place where they would have wished
to draw the line if they had been asked to produce their own assessment of the
dictates of protecting autonomy.
Cases of misapprehension
If the concern in Olugbojais to protect sexual autonomy, what is that decision's
message for cases in which a person has intercourse under some form of
misapprehension?
It is not difficult to conclude that consent should be seen as absent in at least
some such cases. Autonomy predicates choice, and someone whose perception
Appreciating Olugboja
287
288
Legal Studies
may well be that his identity is of little or no real interest to her, and so on this
approach we may wish to say that she has consented despite her mistake.
The Olugboja approach has one further message for this type of case.
Remember that, dealing with cases of pressure, the court in Olugboja was clear
that some degree of felt pressure is consistent with consent, as opposed to
submission. The case becomes one of submission only when the felt pressure
becomes so grievous as to take it over what the jury regard as the line between
the two states. This position has implications for cases of mistake too. Just as a
degree of felt pressure routinely attends our decision-making, so too, surely, does
a degree of mis- or non-understanding. And just as the former is morally
inconsequential, so too should be the latter. The test should, therefore, not be
whether the victim would have attached some importance to the matter as to
which she was mistaken, nor even whether she would have decided against
having intercourse if she had known the truth. It should be possible to find either
of these propositions to be true and still conclude that she consented. Analogously
with the question whether the felt pressure was so grievous as to negate her
agency, the test should be whether the matter as to which she was mistaken was
so important to her that her misapprehension similarly negates her agency. Say
a woman's friendship with a man is deepening, and her feelings are approaching
those with which she would expect to embark on sexual relations with him, when
her decision to do so is precipitated by the mistaken belief that she is about to
have to go off for a month on business, during which time she fears he may
become involved with another partner. We might say that the matter as to which
she is mistaken, whilst analytically a sine qua non of her decision to have
intercourse, did not play such a compelling role that she should be dissociated
from her decision on account of it.
The test just outlined is obviously inexact. The phenomenon underlying it
appears to be one of degree. In the context of pressure, the court in Olugboja
proposed the word 'submission' to mark the point of transition. That word may
give juries some intuitive handle on the issue confronting them. It is hard to
suggest an equally snappy counterpart for juries to use in the context of mistake.
It may be impossible to do better than to have them ask whether the subjectmatter of the mistake was something of major moment in the victim's decision.
Despite its lack of a key word like 'submission', that test may be no more
imprecise than its counterpart in the context of pressure.
So it is possible to derive from the reasoning in Olugboja the position that
consent is negated by mistake if the matter as to which the victim was mistaken
was of sufficiently (in the view of the jury) major moment in her own decision
to have intercourse with the accused. This approach was not, however, taken by
the Court of Appeal in two recent decisions in this area, R v Elbekkay 0 and R v
Linekar.51 And it is the rival approach of these two decisions which is now
favoured (albeit without discussion of the alternative) by the Law Commission. 52
50. Judgment delivered 12 September 1994; reported only, non-verbatim, at [1995] Crim
LR 163. The judgment was delivered by McCowan LI on behalf of Sachs and Mitchell
JJ and himself.
51. [1995] QB 250. The judgment was delivered by Morland J on behalf of Swinton
Thomas LJ, Steel J and himself.
52. Law Commission Consultation Paper No 139, Consent in the CriminalLaw(1995)
paras 6.11 et seq.
Appreciating Olugboja
289
In Elbekkay, a woman had willing intercourse with the defendant, but did so
under the impression that he was her boyfriend. (She was sleepy and drunk, and
did not open her eyes as he got into bed with her and began to have intercourse.)
The defendant was convicted of rape, but appealed, contending that these facts
could not amount to the offence. He argued that the only case in which willing
intercourse under a mistake" as to identity could constitute rape was that where
the victim wrongly believed she was having intercourse with her husband. This
argument was mounted on the basis of the pre-1976 law.' The Court of Appeal
skirmished with the argument, giving the impression of finding it unpersuasive
even as an account of the old law.55 But in the end, the court left the whole issue
behind, and relied instead on the ruling in Olugboja that the Sexual Offences
(Amendment) Act 1976 had made a fresh start.5 6 As to the content of the new
test, however, the court did not advert to the approach suggested here as deducible
from Olugboja, whereby there should be no assertion that particular types of
mistake, such as mistakes as to identity, do or do not negate consent across the
board, everything depending instead on the priorities of the individual victim.
On the contrary, the court made just such an assertion. It stated that the jury could
not have failed to conclude that the victim did not consent,5 7 and added its own
finding to the same effect, saying: 'The vital point about rape is that it involves
53. The discussion in the Court of Appeal's judgment is in fact couched consistently in
terms of 'fraud' and 'impersonation', rather than mistake. The former are narrower than
the latter, in that they are apparently restricted to cases where the mistake stems from the
defendant's deliberate misrepresentation, rather than from causes such as spontaneous
mistake or innocent misrepresentation. However, the judgment places no stress on this
restriction, and may be thought to extend to all cases of mistake as to identity. Indeed, it
is unclear whether there was a deliberate misrepresentation by the defendant inElbekkay
itself. The case may have been one of a spontaneous mistake on the victim's part, albeit
(for mens rea to have been present) a mistake taken advantage of by the defendant. It
has been more recently held that, at any rate as regards the nature of the act, mistake
rather than fraud is what matters: Linekar [1995] QB 250, 255G; this was likewise the
view of the High Court of Australia in PapadimitropoulosvR (1957) 98 CLR 249,260;
and it is followed generally in Law Commission Consultation Paper No 139, Consent in
the CriminalLaw (1995) paras 6.24-6.33.
54. InR vBarrow (1868) LR 1 CCR 156, the Court for Crown Cases Reserved held that
consent to intercourse was never vitiated by mistake as to identity, even mistake as
between the defendant and the victim's husband. As regards the particular case of mistake
as between the defendant and the victim's husband, this ruling was disputed by the Irish
Court for Crown Cases Reserved inR vDee (1884) 15 Cox CC 579, and rejected by the
Criminal Law Amendment Act 1885, s 4, declaring that this situation did amount to
rape. But that left the situation where the mistake was as between the defendant and a
partner to whom the victim was not married, to which, the defendant in Elbekkay now
contended, Barrowstill applied.
55. The court failed to consider the other authorities in point. Supporting Barrow,there
were the cases of R vJackson (1822) Russ & Ry 487; R v Saunders(1838) 8 C & P 265;
R v Williams (1838) 8 C &P 286; andR v Clarke (1854) Dears CC 397. (In both Saunders
and Williams, however, the man was convicted of assault instead, apparently on the
questionably consistent basis that the woman, thinking him her husband, had not consented
to being touched by him.) Against Barrow, as well as R v Dee (1884) 15 Cox CC 579,
there were R v Flattery (1877) 2 QBD 410; and R v Clarence(1888) 22 QBD 23, 34,44.
56. Transcript p 11A-D.
57. Transcript p lD.
290
Legal Studies
the absence of consent. That absence is equally crucial whether the woman
believes that the man she is having intercourse with is her husband or another. 58
In Linekar, the jury found that the defendant had tricked the victim, a
prostitute, into having intercourse with him by promising to pay her 25, when
he had no intention of doing so. They convicted him of rape on this basis. The
Court of Appeal quashed his conviction. The court held that a victim who mistook
the circumstances nevertheless consented unless her mistake was as to the nature
59
of the act itself, in that she failed to understand it to be sexual intercourse at all,
6
See too R v Case (1850) 1 Den 580 (indecent assault; understanding of the 'mechanical
act' is not enough: understanding of its significance is required); R v Williams [1923] 1 KB
340 (rape; the man was a singing teacher and told the girl that he was taking measures to
improve her breathing). Contrast, however, the case where the victim knows what is
happening and understands that it is 'sexual intercourse', but mistakenly believes that sexual
intercourse has some property which it does not (eg that it will improve breathing). This
appears not to constitute a mistake as to the nature of the act.
60. [1995] QB 250, 255F-H, 257B-C.
61. R vJackson (1822) Russ & Ry 487;R vBarrow (1868) LR 1 CCR 156;R vFlattery
(1877) 2 QBD 410; R vDee (1884) 15 Cox CC 579; R v Clarence (1889) 22 QBD 23; R
v Williams [1923] 1 KB 340; Papadimitropoulosv R (1956) 98 CLR 249.
Appreciating Olugboja
291
292
Legal Studies
only lie in the determination of the jury. So attentiveness to the individual victim
would entail jury legislation in any event. The court could have left matters thus,
of course, but instead it explicitly recognised the necessity for jury legislation
which it had created, and went on to provide for explicating to juries the nature
of the issue that they are being called upon to decide. This provision, though
perhaps not absolutely necessary, appears an intelligent one; the transparency
which it is designed to lend to the legislative task seems calculated to render the
jury legislation of a higher quality.
Our comparison therefore needs to be between an approach which is attentive
to the individual victim and consequently requires jury legislation to set the
boundaries of consent, and one which announces that consent terminates under
certain conditions which do not vary with the individual victim, such as fear of
serious personal injury and mistake as to identity or the nature of the act.
One might certainly favour the Olugboja approach on account of its
attentiveness to the individual victim, which in turn, as we saw earlier, renders
it relatively acutely calculated to protect sexual autonomy. This approach gives
vitiating effect to any pressure or mistake which is of sufficient significance so
far as the victim personally is concerned, but to no other pressure or mistake.
To be sure, any plausible reading of the concept of consent will have some claim
to make rape protect sexual autonomy. 65 But an approach which uses a fixed
formula to dictate what vitiating factors are both necessary and sufficient will
fail to engage with the fact that different people respond differently to the same
pressures, and attach differing priorities to the matters about which they may be
mistaken. By contrast with the Olugboja approach, the fixed formula will give
vitiating effect to some pressures and mistakes which certain people would not
regard, so far as they themselves are concerned, as of such significant moment;
and on the other hand it will deny vitiating effect to some pressures and mistakes
which certain people would regard, so far as they themselves are concerned, as
having the necessary moment. It protects such people's autonomy to the extent
that autonomy comes in a standardised package; but fails to do so if we regard
that idea of autonomy as self-contradictory, believing instead that autonomy can
only be about individual choice.
If the fixed formula approach is viewed against a desideratum of protecting
sexual autonomy, therefore, it has shortcomings. These shortcomings may be
the result of the formula's not being directed univocally at the invasion of sexual
autonomy at all, but attending additionally to certain other kinds of wrong. The
point can be seen clearly by recalling that the formula was traditionally rendered
in the brocard that consent was negatived by 'force, fear or fraud'. The sense of
this brocard seems to have been that the defendant must have hurt, threatened
to hurt, or tricked the victim. Such actions are wrongs in themselves, independently of the fact that the defendant went on, specifically, to have sexual
intercourse with the victim. Now for rape to be targeted on a combination of
wrongs in this way was not unintelligible. Organised thus, rape was of similar
design to such other offences as robbery and obtaining by deception. Even in its
fixed formula version, however, the offence has moved on from this position.
In particular, it is now accepted that there is no need for a victim's mistake (as
65. The Court of Appeal in Elbekkay, transcript p 12C-D, was thus justified in saying
that it was protecting autonomy by its recognition of a rule whereby any mistake as to
identity vitiates consent.
Appreciating Olugboja
293
to the nature of the act or the identity of the defendant) to have been brought
about by the defendant's fraud: it can have been spontaneous. 66 The rationale
behind this movement may well have been a perception that the victim's sexual
autonomy is invaded just as much where she is spontaneously mistaken as where
she is tricked, together with a further perception that the invasion of sexual
autonomy merits proscription for its own sake, regardless of the presence of a
collateral wrong. But the movement has left the fixed formula approach in
something of a no-man's-land. Whilst no longer particularly directed at those
who have intercourse through a collateral wrong, neither, as we have seen, does
it fully meet the aim of protecting sexual autonomy. From this point of view,
then, there appears much to be said for the Olugboja approach, which, sharing
the perception that the invasion of sexual autonomy merits proscription for its
own sake, puts this perception more exactly into effect.
But from another point of view, one might disfavour the Olugboja approach.
It might be said to be indeterminate, and so to make the law unpredictable, and
to raise a danger of like cases not being treated alike, rendering the law unjust.
One could not necessarily say on the basis of the defendant's actions and the
externally visible circumstances whether a victim who agreed to intercourse
consented or not; it would depend on the make-up of the individual victim and
on the jury's assessment of what people must take in their stride. And in the
face of the same actions and externally visible circumstances, one assenting
victim might be found to have consented when another might not, either because
of the difference in their make-up or because two juries took different views as
to what people must take in their stride. Under the fixed formula approach, by
contrast, it can be predicted what actions and externally visible circumstances
will and will not lead to liability, and the answer will not vary from one case to
another.
In fact, the Olugboja approach's attentiveness to the individual victim does
not itself entail that the law's impact will be unpredictable or that like cases will
not be treated alike, at any rate in any way which should be regarded as producing
injustice. Assuming that the construct of consent itself remains constant, there
is no question of like cases not being treated alike. A defendant will be guilty of
rape if he has intercourse without consent, and only then. Differences in how
that comes about (or likenesses between cases where it does come about and
cases where it does not) are nothing to the point. Unpredictability at first seems
more of a problem, in that it may not be easily perceptible to a man about to
embark on intercourse whether his partner's agreement is of a quality which
would not count as consent under this approach. But the mens rea rules for rape
make liability depend on it being shown, at the lowest, that the defendant did
not care whether the victim consented, 67 so there will in fact be no liability unless
he could indeed have predicted that his partner might not be consenting.
But if we now recall that the Olugboja approach necessarily involves resort
to jury legislation, the worries may return. The concern would be less over
unpredictability - the argument from the mens rea rules appears to apply here
too - than over the possibility that like cases might not be treated alike. Imagine
66. This is explicitly recognised in Linekar [1995] QB 250, 255G, and implicitly in
Elbekkay: see n 53 above.
67. See R v Taylor (1985) 80 Cr App R 327, and S Gardner 'Reckless and Inconsiderate
Rape' [1991] Crim LR 172.
294
Legal Studies
that two defendants induce exactly the same degree of felt pressure in their
victims. One might be convicted while the other was acquitted, because their
respective juries take different views as to how much pressure people should be
expected to take in their stride. Whereas, under the rival aproach, there would
seem to be consistency, in that threats of (say) serious injury would lead to
conviction, whilst other forms of pressure did not.
This contrast between the Olugboja approach and its rival is not polar,
however. Although the latter defines the boundary between consent and nonconsent by means of rules, it too gives juries a legislative role. This role is of a
very familiar kind, endemic to the law as a whole and, in the present context, to
its use of juries. It may be briefly stated. There is a degree of discretion inherent
in the imprecision of the concepts used in the rules in question, which juries are
asked to apply: most unmistakably, in the concepts of 'serious injury', of 'the
nature of the act', of 'understanding' and of 'rational judgment'. And there is
also a degree of discretion inherent in the very use of juries as fact-finders and,
beyond that, ultimate judges of guilt, especially when juries are not invited to
give reasons for their determinations and indeed are in effect prohibited from
doing so. These discretions invest juries with the opportunity to bring into their
decisions whatever values they may please, and so in effect to legislate for the
applicability of those values.
But although the contrast between the Olugboja approach and its rival is thus
not polar, there is still a difference between them. The most striking feature of
the form ofjury legislation just canvassed is that, under it, juries are not told of
their legislative role. It may be surmised that the lengths to which individual
juries are prepared to go in that role will vary significantly, even in cases which
are identical in all other respects than the composition of their jury. Nor, in the
event that juries appreciate their opportunity to legislate, do they receive any
guidance as to the kinds of values that they would be ethically justified in bringing
into play. In the context of rape, for example, they might follow the reportedly
common idea that there is no rape if there is no violence, or if the victim 'has
only herself to blame' for what occurred, which they may infer for example where
she accepted a lift from a stranger or was dressed 'provocatively'.68
Whilst the Olugboja approach explicitly gives juries a legislative role on
certain aspects of the definition of rape, it does of course not supplant, but rather
exists alongside, the opportunity for jury legislation of the other variety, just
discussed, as regards other aspects of the offence's definition. There may be some
interaction between the two, however. One hypothesis is that asking a jury to
legislate under the Olugboja approach may mute any tendency that it may have
to legislate otherwise, in that juries possessing legislative inclinations may find
those inclinations channelled into the matters to which the Olugboja approach
asks them to attend. A second, equally plausible, hypothesis is however to the
opposite effect: that asking the jury to engage in the delineation of a particular
aspect of the offence under the Olugboja approach may whet its appetite to
legislate generally, in that it may feel more assured of the appropriateness of
that activity.
So whilst both approaches involve jury legislation, with the consequent
possibility of like cases not being treated alike (and other difficulties), it is
68. See J Temkin Rape and the Legal Process(London 1987) pp 7, 73-75, and further
references there.
Appreciating Olugboja
295
296
Legal Studies
73. Criminal Justice and Public Order Act 1994, s 142: see at n 10 above.