1. [1982] QB 321. The judgment was delivered by Dunn W on behalf of Milmo and May JJ and himself.

2. Judgment delivered 1 July 1994; reported only, non-verbatim, at [1995] Crim LR 75.

3. Judgment delivered 12 September 1994; reported only, non-verbatim, at [1995] Crim LR 163.

4. [1995] QB 250.

5. Law Commission Consultation Paper No 139, Consent in the Criminal Law (1995). See Part VI, especially paras 6.12–6.13 and 6.39.

6. Whilst rape was a statutory offence under the Sexual Offences Act 1956, s 1, its definition was left to the common law.

7. As follows: …. a man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it…

8. Report of the Advisory Group on Rape (1975, Cmnd 6352) paras 81, 84.

9. [1982] QB 321,331 E-G. See too R v R [1992] 1 AC 599 (dealing with the question whether the word ‘unlawful’ means that rape cannot be committed when a man has intercourse with his wife), and R v Pigg [1982] 1 WLR 762 (dealing with mens rea), which both regard the 1976 Act as making a fresh start. In the latter context, however, compare R v Satnam and Kewal S (1984) 78 Cr App R 149, where the Court of Appeal decided to resort to pre-1976 material after all.

10. Section 142 operates by establishing a new section 1 for the Sexual Offences Act 1956, as follows: (1) It is an offence for a man to rape a woman or another man. (2) A man commits rape if - (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. (3) A person also commits rape if he induces a married woman to have intercourse with him by impersonating her husband.

11. See [1982] QB 321, 332H–333A.

12. Ibid at 331F.

13. Ibid at 332A.

14. Ibid at 331G.

15. Ibid at 332B-E.

16. Ibid at 331H, 332E.

17. A different usage of the two terms may be seen in Coleridge J's famous statement in R v Day (1841) 9C & P 722,724, that ‘every consent involves a submission, but it by no means follows that a mere submission involves consent’. Here, the term ‘submission’ is evidently used in respect of all the cases in which the woman says ‘yes’; it is then said, clearly correctly, that one subset of such cases features consent, while the other does not. This use of ‘submission’ is (pace the Court of Appeal, [19821 QB 321, 3328) quite different from that adopted in Olugboja, where it refers to the second of these subsets (albeit that the content which Olugboja, with its attention to the degree of felt pressure, gives that subset may not be the same as that which Coleridge J would have recognised). The Olugboja usage is the more natural to us today, but Coleridge J's is hardly surprising for its date and milieu.

18. [1982] QB 321, 331H.

19. Ibid at 332E.

20. Ibid at 332F. Sed quaere. The trial judge seems to have equated ‘consent’ with the absence of ‘any constraint’ (see at 327E-328B, especially 327F). Are not some instances of felt constraint within the catchment of ‘reluctant acquiescence’, which, as noted above, the Court of Appeal regard as a form of ‘real consent’?

21. [1982] QB 321, 332G–333A.

22. ‘Applying their combined good sense, experience and knowledge of human nature and modem behaviour to all the relevant facts of [the] case’ ([1982] QB 321,332E).

23. [1982] QB 1053.

24. [1982] QB 321, 331G-332A.

25. Ibid at 331H: see at n 18 above.

26. The Court of Appeal in Olugboju mentioned these cases ([1982] QB 321, 328H), but did not indicate whether it regarded them as cases of submission or consent. In terms of the court's own approach, that is right, for the answer would depend on the reaction of the particular victim concerned.

27. This perception is spelt out by J Temkin ‘Towards a Modem Law of Rape’ (1982) 45 MLR 399,401: ‘The overriding objective which… the law … should seek to pursue is the protection of sexual choice, that is to say, the protection of a woman's right to choose whether, when and with whom to have sexual intercourse.’

28. R v Camplin (1845) 1 Car & K 746; R V Fletcher (1859) Bell 63, 71; R v Muyers (1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114.

29. Compare, however, the important view that women (at least) do not possess substantive sexual choice at the best of times, so that to perceive rape in terms of a failure of such choice is to focus upon a chimera. The literature is extensive, but see particularly C MacKinnon Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass 1987), and also J Temkin, Rape and the Legal Process (London 1987) pp 41–42, and further references there. In theory, Olugboja allows rape to reflect this perception, if the prosecutor and the jury choose to think this way about consent. But that is probably unlikely in practice, and arguably inappropriate; the concern thus posited is perhaps not well translated into individual criminal responsibility (especially via the male-dominated vehicle of a criminal trial).

30. Cf the lesser offence of procuring a woman to have intercourse by threats (Sexual Offences Act 1956, s 2). This might be looked to as a repository for less serious disruptions of the freedom to choose. Whether it serves this role depends on the interpretation of the expression ‘by threats’. Clearly, it is envisaged that the threat must have been of some moment with the victim; it is not impossible that the required degree of moment might be fixed with reference to the same consideration of expecting people to take a certain amount in their stride. There is no authority on the issue.

31. Law Commission Consultation Paper No 139, Consent in the Criminal Law (1995) paras 6.34–6.77.

32. It would demit certain further types of threat or pressure to a lesser offence, which would replace the present offence of procuring a woman to have intercourse by threats (Sexual Offences Act 1956, s 2). But it would see this offence too as organised around a catalogue of pressure-sources, rather than as attending to the reaction of the individual victim.

33. Judgment delivered 1 July 1994; reported only, non-verbatim, at [1995] Crim LR 75. The judgment was delivered by Hobhouse LJ on behalf of Tudor Evans and Ebsworth JJ and himself.

34. R v Howard [1966] 1 WLR 13; R v Lang (1976) 62 Cr App R 50. Mutatis mutandis for the present context, the formula contended for would have read: ‘The prosecution must prove either that she physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.’ Even before 1976, in fact, there was authority that resistance was irrelevant. But in any case, it is not obvious what difference it could have made to the jury's assessment of the situation had the judge so directed.

35. Transcript pp 9H-llB, especially p 11 A. In holding thus, however, the court overlooked that the Howard formulation (n 34 above) had previously, but more recently than both the 1976 Act and Olugboja, been approved in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 169D-E, 186H. In truth, though, the approval was directed to the determination in Howard that there is no rule that girls under 16 cannot consent, rather than to the ‘resistance’ aspect of the formula.

36. Transcript pp 10D–1lA.

37. Attending to sexual autonomy directly, rather than to the mediating concept of a state of mind, may however produce a different answer in two types of case involving felt pressure and insensibility. Imagine a case where someone determines to have intercourse, and then – say, to indulge her partner – renders herself or allows herself to be rendered insensible. Or a case where she similarly determines to have intercourse and then (but perhaps this is self-contradictory) allows herself to be coerced. Respecting her overall choice seems to vindicate her autonomy better than focusing purely on her insensibility or sense of grievous felt pressure during the penetrative part of the episode itself. In terms of the Criminal Justice and Public Order Act 1994, s 142 (and before it the Sexual Offences (Amendment) Act 1976, s 1(1)), the question is whether she consents ‘at the time of the intercourse’. It seems possible to argue that she does.

38. It should of course be remembered that such legitimacy is not a function of the profile of rape alone; the offences in the Sexual Offences Act 1956, ss 5–7 are also in point. But the scope, or indeed existence, of these offences turns on the same considerations as are discussed in the text, and is similarly controversial. Even with these offences as they are, moreover, the handling of the topic within rape has a powerful symbolic significance.

39. This is the essence of many of the complaints made against the decision of the House of Lords in R v Brown [1994] 1 AC 212. The difficulty in that case, however, was arguably not simply to discern the dictates of sexual autonomy (these might be conceded to be to allow the practices in question), but rather to weigh these against the countervailing desideratum of suppressing a culture of violence. More germane, therefore, is the decision of the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1. There, it appeared that hospital authorities were facilitating sexual relationships by patients such as F, who was severely subnormal. Their Lordships made no adverse comment on the practice, and indeed bolstered it by giving their imprimatur to the contraception thought to be required (as to which, see J Shaw ‘Sterilisation of Mentally Handicapped People: Judges Rule OK?’ (1990) 53 MLR 91).

40. See especially R v Dee (1884) 15 Cox CC 579,593–4, per Palles CB: ‘Consent is the act of man, in his character of a rational and intelligent being, not in that of an animal. It must proceed from the will, not when such will is acting without the control of reason, as in idiocy or drunkenness, but from the will sufficiently enlightened by the intellect to make such consent the act of a reasoning being … I feel that I owe an apology to my hearers in insisting upon so elementary a proposition, but nothing is in my opinion too elementary to encounter [sic; counter?] a doctrine so abhorrent to our best feelings, and so discreditable to any jurisprudence in which it may succeed in obtaining a place, as that which, more than once, was laid down in England, that a consent produced in an idiot by mere animal instinct is sufficient to deprive an act of the character of rape.’ See too (after 1976, but ignoring Olugboja) Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112,189C-E, 201B-C, where Lords Scarman and Templeman (the latter dissenting) detail the information about sex which a girl should have in mind before she can validly consent to the administration of contraceptives; presumably they would expect the same as a condition of her validly consenting to intercourse itself. Quaere whether the level of information envisaged by their Lordships is possessed even by the general run of adults. It is certainly doubtful whether this was the standard adopted by their Lordships in Re F (Mental patient: Sterilisation) [1990] 2 AC 1, discussed in n 39 above.

41. See eg R v Fletcher (1859) Bell 63; R v Barratt (1873) LR 2 CCR 81.

42. See eg R v Howard [1966] 1 WLR 13; R v Lang (1976) 62 Cr App R 50.

43. See eg the directions by Keating J in R v Fletcher (1866) LR 1 CCR 39 and by Honyman J in R v Barratt (1873) LR 2 CCR 81. Presumably these are among the statements aspersed by Palles CB in R v Dee (1884) 15 Cox CC 579,594 (see n 40 above).

44. Transcript p 11E. These words can have made little or no difference in Larter and Castleton itself, of course, for the victim there appears to have been so close to insensibility, if not actually insensible, that to talk of understanding her situation and exercising a rational judgment is to be unnecessarily refined.

45. Law Commission Consultation Paper No 139, Consent in the Criminal Law (1995) Part V.

46. Op cit para 5.13.

47. Op cit paras 5.3, 5.16.

48. One might think of dealing with this material by looking to the victim's feelings on discovering the truth. This approach, however, would once again conceive rape in terms of the presence of a collateral harm or wrong (albeit now a delayed-action one), rather than in the terms favoured by Olugboja of the protection of sexual autonomy.

49. See especially R v Clarence (1888) 22 QBD 23, 27–30, 43; Papadimitropulos v R (1958) 98 CLR 249.

50. Judgment delivered 12 September 1994; reported only, non-verbatim, at [1995] Crim LR 163. The judgment was delivered by McCowan LJ on behalf of Sachs and Mitchell JJ and himself.

51. [1995] QB 250. The judgment was delivered by Morland J on behalf of Swinton Thomas LJ, Steel J and himself.

52. Law Commission Consultation Paper No 139, Consent in the Criminal Law (1995) paras 6.11 et seq.

53. The discussion in the Court of Appeal's judgment is in fact couched consistently in terms of ‘fraud’ and ‘impersonation’, rather than mistake. The former are narrower than the latter, in that they are apparently restricted to cases where the mistake stems from the defendant's deliberate misrepresentation, rather than from causes such as spontaneous mistake or innocent misrepresentation. However, the judgment places no stress on this restriction, and may be thought to extend to all cases of mistake as to identity. Indeed, it is unclear whether there was a deliberate misrepresentation by the defendant in Elbekkay itself. The case may have been one of a spontaneous mistake on the victim's part, albeit (for mens rea to have been present) a mistake taken advantage of by the defendant. It has been more recently held that, at any rate as regards the nature of the act, mistake rather than fraud is what matters: Linekar [1995] QB 250, 2556, this was likewise the view of the High Court of Australia in Papadimitropoulos v R (1957) 98 CLR 249,260; and it is followed generally in Law Commission Consultation Paper No 139, Consent in the Criminal Law (1995) paras 6.24–6.33.

54. In R v Barrow (1868) LR 1 CCR 156, the Court for Crown Cases Reserved held that consent to intercourse was never vitiated by mistake as to identity, even mistake as between the defendant and the victim's husband. As regards the particular case of mistake as between the defendant and the victim's husband, this ruling was disputed by the Irish Court for Crown Cases Reserved in R v Dee (1884) 15 Cox CC 579, and rejected by the Criminal Law Amendment Act 1885, s 4, declaring that this situation did amount to rape. But that left the situation where the mistake was as between the defendant and a partner to whom the victim was not married, to which, the defendant in Elbekkay now contended, Barrow still applied.

55. The court failed to consider the other authorities in point. Supporting Barrow, there were the cases of R v Jackson (1822) Russ & Ry 487; R v Saunders (1838) 8 C & P 265; R v Williams (1838) 8 C & P 286; and R v Clarke (1854) Dears CC 397. (In both Saunders and Williams, however, the man was convicted of assault instead, apparently on the questionably consistent basis that the woman, thinking him her husband, had not consented to being touched by him.) Against Barrow, as well as R v Dee (1884) 15 Cox CC 579, there were R v Flattery (1877) 2 QBD 410; and R w Clarence (1888) 22 QBD 23,34,44.

56. Transcript p11A-D.

57. Transcript p 11D.

58. Transcript p 12F. There might have been a difficulty for this conclusion in that the Sexual Offences Act 1956, s 1(2), which replaced the Criminal Law Amendment Act 1885, s 4 (see n 54 above), was in force for Elbekkay, and provided that: ‘A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape.’ If inclusio unius exclusio alterius est, this arguably determined that no other mistake as to identity negates consent. But the court held otherwise, commenting (transcript p 10G): ‘We … think it very unlikely that in 1956 Parliament was deliberately and consciously deciding that it was rap: to impersonate a husband, but not, say, a man who had been living with the woman for many years.’ The relevant provisions are now contained in section 142 of the Criminal Justice and Public Order Act 1994: see n 10 above. This reproduces the corresponding portions of the 1976 and 1956 Acts almost exactly, and so may be thought to present no additional difficulties. But cf J C Smith commentary [1995] Crim LR 164,165.

59. There may be two versions of a failure to understand that an act is sexual intercourse at all. One occurs where the victim does not realise that she is undergoing penetration of her vagina or anus by a man's penis; the other occurs where she realises that this is happening, but does not realise that this is the act referred to as ‘sexual intercourse’. In R v Fluttery (1877) 2 QBD 410,413, where a man induced a girl to have intercourse with him by telling her that it was a surgical operation, Kelly CB appears to deal with both possibilities: ‘She submitted to a surgical operation and nothing else. It is said, however, that, having regard to the age of the prosecutrix [19], she must have known the nature of sexual connection. I know of no ground in law for such a proposition. And, even if she had such knowledge, she might suppose that penetration was being effected with the hand or with an instrument.’ See too R v Case (1850) 1 Den 580 (indecent assault; understanding of the ‘mechanical act’ is not enough: understanding of its significance is required); R v Williams [1923] 1 KB 340 (rape; the man was a singing teacher and told the girl that he was taking measures to improve her breathing). Contrast, however, the case where the victim knows what is happening and understands that it is ‘sexual intercourse’, but mistakenly believes that sexual intercourse has some property which it does not (eg that it will improve breathing). This appears not to constitute a mistake as to the nature of the act.

60. [1995] QB 250, 255F-H, 257B-C.

61. R v Jackson (1822) Russ & Ry 487; R v Barrow (1868) LR 1 CCR 156; R v Fluttery (1877) 2 QBD 410; R v Dee (1884) 15 Cox CC 579; R v Clarence (1889) 22 QBD 23; R v Williams [1923] 1 KB 340; Papadimitropoulos v R (1956) 98 CLR 249.

62. The approach of the trial judge in Linekar may have been closer to that deducible from Olugboja. The report gives only excerpts from the direction, and the judge's language therein is not lapidary. But at one point he tells the jury that if they find the relevant facts proved, ‘it would be or may be the case, that you would take the view that there was no consent at all’ ([1995] QB 250, 254A). And later he adds, ‘it is a matter for you which you would no doubt take the view that the fraud vitiated the consent’ ([1995] QB 250,254B). The sense here appears to be not a legal ruling that the mistake in question vitiated consent, but an instruction to the jury to decide for themselves whether it did so, as far as this victim was concerned.

63. Law Commission Consultation Paper No 139, Consent in the Criminal Law (1995) para 6.18.

64. Op cit para 6.19.

65. The Court of Appeal in Elbekkay, transcript p 12C-D, was thus justified in saying that it was protecting autonomy by its recognition of a rule whereby any mistake as to identity vitiates consent.

66. This is explicitly recognised in Linekar [1995] QB 250, 2556, and implicitly in Elbekkay: see n 53 above.

67. See R v Taylor (1985) 80 Cr App R 327, and S Gardner ‘Reckless and Inconsiderate Rape’ [1991] Crim LR 172.

68. See J Temkin Rape and the Legal Process (London 1987) pp 7, 73–75, and further references there.

69. See G de Búrca and S Gardner ‘The Codification of the Criminal Law’ (1990) 10 OJLS 559,562–563.

70. The locus classicus is P Devlin Trial by Jury (London 1956), especially pp 154–157, 160–165. See too now the important contribution by J Horder ‘Intention in the Criminal Law - A Rejoinder’ (1995) 58 MLR 678,684–689,690–691, focusing on the scope for jury legislation in the concept of ‘intention’ in murder, and resting upon the thinking about the nature of law offered by L L Fuller The Morality of Law (New Haven, revised edn, 1969) pp 208–224.

71. For a valuable discussion of the vision of jury legislation under R v Ghosh [1982] QB 1053, which it was argued above (text at M 23–24) is sister to that under Olugboja, see R H S Tur ‘Dishonesty and the Jury: A Case Study in the Moral Content of Law’ in A Phillips Griffiths (ed) Philosophy and Practice (Cambridge 1985) pp 75 et seq. See also S Gardner ‘Is Theft a Rip-off?’ (1990) 10 OJLS 441, 447–448.

72. G Robertson ‘Informed Consent to Medical Treatment’ (1981) 97 LQR 102 identifies a desire to protect the doctors, and hence the delivery of medicine, as the principal reason for the rejection in much of the United States of a rule that doctors must seek their patients' ‘informed consent’ to the risks of proposed medical procedures, in favour of a rule that doctors may keep their patients relatively in the dark so long as they do so in accordance with responsible medical opinion. Robertson's article was influential with the House of Lords when it took the same line in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. But in any event, note that the classic formulation of ‘informed consent’ (Canterbury v Spence 464 F 2d 772 (1972)) looks to the significance which the information in question would have for the ‘prudent patient’, rather than for the individual patient involved. Robertson accordingly identifies the doctrine not, despite its attendant rhetoric to this effect, with the vindication of individual patients' autonomy, after the manner of Olugboja, but with the expansion of the circumstances in which compensation would be available to victims of ‘medical accidents’. Cf Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 888G-H.

73. Criminal Justice and Public Order Act 1994, s 142: see at n 10 above.