ABSTRACT
In a number of situations it may be impossible legally, or very difficult factually, for the prosecution to establish all the elements necessary for a charge of rape to succeed. Frequently, this may be due to the fact that an absence of consent (as defined in and required by the law of rape) cannot be established or, even more fundamentally, that the victim did give de facto consent, but, nevertheless, the law regards it as having been given in circumstances which merit criminalisation, albeit of a ‘lesser’ crime than rape.
