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on to do the particular harm that was done, or (2) reckless as to whether such harm should occur or not. Therefore, the mens rea of rape can be intent or recklessness, i.e. where a person carries out an act despite the risk or harm he foresees.

Rape and its mental element was considered in the case of DPP v Morgan [10] by the House of Lords, in 1976. The victim, Mrs Morgan’s husband (Morgan) invited three men, who were strangers, to have sex with his wife (Mrs Morgan). Morgan had, allegedly, told the three men that his wife was ‘kinky’ and was likely to resist and say no to sex and that this would mean she was actually saying yes and was only resisting to get ‘turned on’. Morgan denied that he had said this to the three men. All four men had sex with Mrs Morgan by using force and violence against her resistance. The three men claimed that they believed that Mrs Morgan was consenting due to what Morgan had told them prior to inviting them. The jury was directed by the trial Judge who stated that ‘unless their belief was based on reasonable grounds, it could not constitute a defence to rape. The three men were convicted of rape and Morgan was convicted of aiding and abetting. All four men appealed to the Court of Appeal then the House of Lords against their convictions. Here it was held that there could not be a conviction of rape if the man honestly thought that the woman had consented to sexual intercourse with his belief not having to be reasonable. However, the proviso was applied and the convictions were upheld.

After effects and public disapproval of DPP v Morgan

There was widespread public disapproval of the decision made by the House of Lords in DPP v Morgan, with the decision being hailed as the ‘rapists’ charter’, which was formally known as the ‘mistaken belief’ because it meant that the victim (woman) could actively not be consenting by resisting with struggle and even shouting ‘no’, but the man’s conviction could still be upheld. In 1976, Mr Jack Ashley, MP in the House of Commons was given leave by an astonishing 228 votes to 17, for the introduction of the Sexual Offences (Amendment) Bill which would require reasonableness where there were claims of mistaken beliefs in consent, in response to which the Government set up a committee (the Heilbron Committee) which was chaired by Mrs Justice Heilbron. [11] The Heilbron Committee considered the decision held by the House of Lords in DPP v Morgan as correct in relation to its principle, that it would not interfere with the genuine issues in a rape trial and neither would it exhilarate juries to accept counterfeit defences brought forward by the defendants, the Heilbron Committee took the view that DPP v Morgan led to misunderstandings which should be cleared up. The Heilbron Committee suggested that a declaration of rape was needed in a statutory form to 'Provide the opportunity to clarify the existing law and in particular to bring out the importance of recklessness as a mental element in the crime... such a definition would also emphasise that lack of consent (and not violence) is the crux of the matter'. [12] Repeating Professor John Smith’s beliefs, they concluded that the suitable and acceptable mens rea for rape was intent and recklessness and to go beyond this ‘would be to extend the definition of a grave crime to include conduct which, however deplorable, does not in justice or common sense justify branding the accused as a gu