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. ...Show more