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ent [38] and also by returning to the category approach and listing them within section 75 (2) of the offence.

However the 2003 Act differentiates between the six categories where consent is presumed to be absent. Unless there is sufficient evidence to the contrary to give raise to an issue the defendant reasonably believed that the victim consented, an two categories where consent is conclusively presumed to be absent.

This means that the issue of consent still, to some extent, relies upon the mental state of the defendant, even in cases such as where the victim was asleep, experiencing violence from the defendant, or unlawfully detained [39] , although the burden of proof is reversed in these situations with the defendant required to demonstrate the steps he took to ascertain consent.

In R v Dougal [40] , Jennifer Temkin stated “under common law, a woman is not considered to have the ability to give consent to sex when incapacitated through alcohol”. She also stated that the Sexual Offences Act 2003, a woman can only consent to sex when she has the freedom and capacity to do so. However, having sex with someone while under the influence of alcohol that one would normally not have sex with is still considered consentual.

Hinchliffe in her article, titles Rape and the shadow of a doubt published in The Independent commented that“one example of the type of reform likely to emerge from the ongoing Home Office review is that the Morgan principle-the defence to rape of an “honest though mistaken” belief in consent-ought to go” (The Independent:2000) [41] .

Hinchliffe states “that feminists and critical lawyers have argues that Margan makes it easy for men to be acquitted when accused of rape”.

Based on DPP v Morgan 1976 [42] , if a man commited the actus reus of rape, but honestly believed that the woman was consenting regardless of how unreasonable this belief is he could not be convicted of rape because of the lack of mens rea (Barnett, 1998) [43] . As Hinchliffe comments that “according to one critic, ‘all the man has to say is ‘I thought she wanted it’ and the law may be lenient” (Hinchliffe, 2000) [44] . Temkin states that many feminists have referred to this as the ‘mistaken belief’ clause of informally as the ‘rapists charter’ [45] .

Sheila Duncan comments that for many the Morgan principle priveledges men over women. “Concern has been expressed that what happens in the woman’s mind [46] is disregarded by the Morgan mens rea requirement. Even if the jury believes that a woman did not consent to sex, if it also believes that the man did not intend to rape her, it must acquit him” (1996:183) [47] .

Westmarland highlights that “feminist activist groups have campaigned for many years for the reform of the ‘mistaken belief’ principle instead of being based on an honest belief they suggest that it should be based on some test of reasonableness or that the mistaken belief clause itself should be abolished altogether” (2004:11) [48] .

As predicted by Sara Hinchliffe there were many debates in relation to the Morgan principle of ‘mistaken honest belief’ during the Home Office review of Sexual Offences in 1999.

Although Westmoreland commented that the respondents to the rape and sexual assault section at the time could not reach a clear agreement in relation to recommendation since a third of the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。