Usually evidence of some struggle or resistance by the complainant maybe the best proof of lack of consent but this is not always necessary.
It will be recalled in the case D.P.P. v Morgan3 the House of Lords held that if an accused person believed that the woman was consenting he should not be guilty of rape even though he had no reasonable grounds for his belief. The mental element of rape is intention to have sexual intercourse without the woman's consent or not. The sexual offences (Amendment) Act 1976 amended the law relating to rape in England by providing that a man commits rape if he has sexual intercourse with a woman who does not consent to it; and at the time he knows that she does not consent to it or he is reckless as to whether she consents to it. The amendment in effect confirmss the decision in D.P.P. v Morgan. A similar case was reported in Jamieson v HMA4 This Scottish criminal case decided by the High Court of Justiciary on appeal held that a man does not commit rape where he honestly, albeit unreasonably, believes his victim is consenting.
For the facts of the case: Phil raped Jill in a lane close to the house that Jill shares with her mother, Bunty, and her two sisters, Joleen and Shula. Bunty was still up when Jill returned home on the night of the alleged rape, but Jill said nothing about it. She did not mention it to her mother or sisters the next morning, but told Joleen about it two days after the alleged incident.
Whatever reason made her to report an incidence, as rape 2 days after it occurred is very suspicious. Rape, as stated earlier is a criminal offence punishable by life imprisonment. Not telling of the incident the moment it happened could mean that she was not raped on that night. It could be that she finds Phil as the most culpable person to put a rape charge on when she was raped two days after having sex with Phil. The doctrine of break in chain of causation could be applied here. Lord Hoffman in Environment Agency v. Empress Car Company Ltd5 had spelt out the test of causation: whether the intervening act was an "ordinary" occurrence, which would not be a novus actus, or something "extraordinary". In this case Jill is claiming to have been raped by Phil and did not report the rape to her mother on the night neither did she scream for help from passersby. The delay in reporting the issue of rape can cause for the doctrine of break in chain of causation to be applied. The period between when she alleged the offence to have been committed and the period of reporting it is so long that any thing could have happened within that period. This makes her claim of being raped by Phil very questionable.
Phil and Jill have a one-year