ABSTRACT
Section 1(2) of the Sexual Offences Act 1956,31 which defines rape as sexual intercourse without consent, does not explain what is meant by ‘consent’. At common law, consent is vitiated in certain situations: where violence or the threat of it is used, where the victim fears violence, has been deceived as to the nature of the act,32 is deceived by the defendant’s impersonation of another person,33 is asleep34 or insensible through drink.35 The only major development in recent years has been the Court of Appeal’s decision in Olugboja,36 which circumvented the problem of defining consent by deciding that consent was a matter for the jury to decide, with some limited guidance from the judge. As a result, the law is now afflicted by a threefold uncertainty. First, there is the uncertainty generated by the absence of any statutory provision defining consent. Secondly, there is the decision in Olugboja itself that seeks to abandon a legal standard of non-consent in favour of jury decisions on individual cases. Finally, there is the uncertainty as to whether Olugboja has displaced the common law categories of situations where consent is absent.
