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cution did not have to prove that the victim physically resisted.

On the question of whether the defendant ‘believed’ that the woman was consenting when she clearly was not, however, recent law has been much more problematic.

As Baird states the general line of defence used in most rape cases is that the victim consented to the intercourse, or that the accused believed that the victim was consenting to the intercourse [29] . The issue of consent is then what many rape defence arguments are based upon. Therefore it is evident that clarification of this notion is required in order to remedy the deficit. The white paper, which followed the review of sexual offences, had a whole chapter dedicated to the clarification of consent [30] .

Westmarland claims that the root of the problem in relation to consent lies in the burden placed on the prosecution to prove the absence of consent, rather than requiring the defendant to prove that they had taken the necessary steps as to ascertain consent. She comments that this is a unique concept which only applies to rape by illustrating examples such as theft and assault and comments that one would not have to prove in the absences of consent in these cases.

Another problem with consent that is highlighted by feminists is that since rape is a crime which is committed against an individual; it is difficult to prove consent as it is only the victim’s word against the accused or vice versa [31] therefore making it difficult to validate either person’s statement [32] .

The issue of consent in relation to rape was established for the first time within statute in 1976 by virtue of the sexual offences amendment act 1976, although its presence within common law can be dated back to 1845. The authority of Camplin [33] established that although no force was used it was clear that the act of intercourse was against the victim’s will and that she could not have consented to it.

As Jennifer Tempkin describes since Camplin there have been many other cases where consent is automatically deemed to be absent. In brief she provides the following example referred to as the ‘category approach’; where there is force, or where force is evident, where the victim is asleep or intoxicated, where fraud is involved, including the impression of the victims’ husband (Temkin, 2000) [34] .

The ruling in Olugboja [35] stated that consent was a state of mind, and that it is for the jury to make up their own mind as to whether consent was present based on the victim’s state of mind at the time of the alleged rape. Westmarland comments that this ruling appears to overturn the legal standards that had been developed using the ‘category approach’ (2004:8) [36] .

However, Temkin has stated that “the approach of Olugboja is unclear” and she describes the situation “as having a ‘threefold uncertainty’. The first element of uncertainty was because there was no statutory definition of consent. Secondly, the Olugboja decision individualised cases regarding consent and thus moving away from the idea of a non-consent legal standard”. Finally she comments that “there was uncertainty regarding whether or not Olugboja had replaced the previos common law category approach” (2004:9) [37] .

It is evident that the SOA 2003 has attempted to address the uncertainties regarding consent by virtue of section 74 by defining cons本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。