+(,121/,1(

Citation: 16 Legal Stud. 275 1996

Content downloaded/printed from HeinOnline

Tue Nov 1 03:46:17 2016
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
Copyright Information

Vol 16 No 3
November 1996

Legal Studies
Appreciating Olugboja
Simon Gardner
Lincoln College, Oxford'

The mainly social nature of humanity's existence has necessitated an apparatus

of ideas for evaluating, amongst other things, the acceptability of personal
interactions. The idea of consent is an important part of this apparatus. We find
it a valuable ingredient in our thinking about such activities as physical, sexual,
or psychic invasion, and the transfer or use of property. We commonly say that
if someone performs one of these activities without the consent of another person
whom we identify as having rights in the matter, they do a wrong; and, albeit
perhaps a little less commonly, that if the other person does consent, they do
not do a wrong. And we go on to articulate at least some of this thinking in the
form of rules of the criminal law.
The idea of consent offers facets of interest and difficulty to many schools of
analysis, including philosophy, anthropology, and psychology, as well as
jurisprudence. So far as the latter goes, there is one especial concern. The dictates
of protecting consent in an 'ideal' way might well conflict with the dictates of
certain other ideas with which it is right for the law to preoccupy itself, such as
'rule of law' values like maintaining determinacy and treating like cases alike.
In this event, there must be some judgment as to priorities, or some other form
of settlement, amongst the competing considerations. And it will frequently not
be self-evident what this judgment should be.
This article sketches, and reflects on, one particular judgment which may not
so far have received sufficient attention. It is contained in the approach taken
by the Court of Appeal in 1982 regarding the meaning of 'consent' in the law of
rape, in R v Olugboja.1 This approach differs significantly from the approach
taken in earlier cases on the subject. Put shortly, the Olugboja view of consent
looks to a victim's own perception of her interests, arguably somewhat at the
* I am indebted to Grdinne de Bfirca.
1. [1982] QB 321. The judgment was delivered by Dunn Jon behalf of Milmo and
May JJ and himself.

276

Legal Studies

expense of values such as determinacy and the wish to treat like cases alike;
whilst in the earlier cases the emphasis was more on the latter values, to the
neglect of victims' perceptions of their own interests. Despite the fact that
Olugbojais recognised as the leading contemporary authority on the subject, it
was in fact the view taken in the earlier cases that was followed2 in three more3
recent decisions by the Court of Appeal, R vLarter and Castleton, R vElbekkay,
and R vLinekar,4 as well as in the Law Commission's 1995 Consultation Paper,
Consent in the CriminalLaw.' In none of these more recent treatments do the
alternative possibilities, and the arguments for and against them, seem to have
been adequately discerned, however. An appraisal may therefore be worthwhile.
The decisions before Olugboja addressed the offence of rape as it was defined
at common law.6 A statutory definition of rape was introduced for the first time
by the Sexual Offences (Amendment) Act 1976, s 1(1), 7 of which the relevant
element is a requirement that the intercourse be with a woman 'who at the time
of the intercourse does not consent to it'. It was this definition that prevailed at
the time of Olugboja itself and also of the three new decisions. The formulation
of the 1976 definition was proposed by the Heilbron Committee, which thought
it merely codified the prevailing common law position.8 However, the Court of
Appeal in Olugboja,9 whilst thinking that that was probably the effect of the Act,
was prepared to hold if necessary that the 1976 enactment represented a fresh
start to the law's conception of rape, and was to be interpreted and applied in its
own right, without any supposition that the outcome would be the same as under
the previous common law rules.
Section 1(1) of the 1976 Act has more recently been repealed by the Criminal
Justice and Public Order Act 1994, Sch 11, and replaced by the definition
provided by s 142 of that Act.10 The major change introduced by the 1994 Act is
2. Judgment delivered 1July 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 vR [1992] 1AC 599 (dealing with the question
whether the word 'unlawful' means that rape cannot be committed when a man has
intercourse with his wife), andR vPigg [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 vSatnam andKewalS (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:

Appreciating Olugboja

277

the extension of rape to cases of non-consensual anal penetration of either a

woman or a man. By its wording, the new formulation makes no change to the
significance of consent. The question is still whether, when the defendant has
intercourse with the victim, the victim 'does not consent to it'. On the face of it,
the discussion in this article should therefore be apposite to today's position too.
It would not be impossible, however, for a court to decide that the 1994 Act has
made yet another fresh start in the law.
OLUGBOJA
The decision itself
In Olugboja, it seems that the victim had in effect said 'yes' to intercourse under
pressure of a non-specific kind. (The pressure lay in the nature of the overall situation;
in particular, the defendant's companion had already raped the victim and the victim's
friend.") It was contended for the defence that the victim's 'yes' nevertheless
amounted to consent, so that no rape could have been committed. This contention
was made on the basis of what may have been the old rule, that a pressured 'yes'
remained consent unless the pressure took the form of a threat of death or serious
injury. The Court of Appeal rejected the argument. It held that, whether or not such
a rule existed before 1976, the true question under the 1976 Act was simply whether
the victim consented, 12 in the 'ordinary meaning' of consent. 3
Whilst invoking the ordinary meaning of this term, the court resisted the
temptation to leave it to the jury to recognise this ordinary meaning of consent
unaided.' 4 Instead, it offered the observation that 'real consent' is a different 'state
of mind' from 'mere6submission ',15 and that the difference between these two is
a matter of degree.'
Apparently, the court envisaged the spectrum of possibilities as ranging from
joy to anguish, 'real consent' and 'mere submission' being the names of the two
areas created by drawing a line somewhere along that spectrum.17 The ideal case
(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'sfamous statement in
R vDay (1841) 9 C & 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

278

Legal Studies

of 'real consent' is presumably that of the woman who agrees to intercourse out
of love or desire for the man, and who understands what she is doing. But it
seems that the facts can depart somewhat from this ideal without leaving the
area of 'real consent', for according to the court consent 'covers a wide range of
states of mind in the context of intercourse between a man and a woman, ranging
from actual desire on the one hand to reluctant acquiescence on the other'.
However, there comes a point at which the woman's state of mind will be so
different from the ideal that she can no longer be said to give 'real consent', but
must be described instead as giving 'mere submission'. The court leaves the task
of fixing that point to the jury, 'applying their combined good sense, experience
and knowledge of human nature and modem behaviour to all the relevant facts
of [the] case'. 19 It seems to be implicit, however, that the jury are to accept the
analysis of consent up to that point.
The court held that the terms of the judge's direction were close enough to
this approach, 20 and that the relevant evidence was sufficient, 2' that it was safe
to accept the jury's finding that the victim did not consent. It therefore affirmed
the defendant's conviction.
The ideas employed
On the one hand, then, the reasoning in Olugboja appeals to the ordinary meaning
of consent, in order to see off the argument that consent has a special legal
meaning whereby (amongst other things) only certain forms of pressure qualify
to negate it. On the other hand, that reasoning asserts that consent in its ordinary
meaning is a state of mind, and that a person can be said to possess that state of
mind notwithstanding that she feels pressured, so long as her feelings are on the
right side of the point at which consent turns into submission.
There is some difficulty about this. We have only the court's word for it that
the ordinary meaning of consent does follow those lines. The ordinary meaning
may just as well follow the approach of the legal rule contended for by the
defendant, and regard consent not as a state of mind at all, but as consisting in a
person's saying 'yes' in the absence of certain, standardly identified, forms of
pressure (or other vitia). In fact, it seems highly unlikely that the ordinary
meaning of consent is so well honed as to give any firm message on this point,
whether on the lines of either of these approaches, or indeed of any further
possibility.

not. This use of 'submission' is (pace the Court of Appeal, [1982] QB 321, 332B) 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'?

Appreciating Olugboja 279

It appears, then, that we should read the court's invocation of the ordinary
meaning of consent as a rhetorical device, calculated to enable it to reject the
alleged old rule and to claim the contemporarily fashionable support of 'common
sense' for the approach which it chose to introduce instead. In stipulating that
consent be regarded as a state of mind (as elaborated in terms of the distinction
between consent and submission) the court appears in reality to be making law.
Once one has come to terms with the disingenuity involved, there is little to cavil
at in this.
The law as made by the court possesses three particularly important features.
They require further examination.
The first concerns the apparatus for identifying the point at which we move
from consent to submission. How do we tell where the transition occurs? The
court does not attempt to identify the transition point by a formula of its own.
Instead, it asks the jury to fix it, using the sort of standards with which jurors are
taken to be familiar.'
The most famous instance of the criminal law leaving legislative work to the
jury in the fashion described here is perhaps as regards 'dishonesty' in theft and
allied offences, as decided in R v Ghosh. 3 Interestingly, the court in Olugboja
attempted to distance itself from Ghosh.24 There is this difference between the
two. Ghosh asks the jury to delineate the very concept, 'dishonesty', named in
the relevant offence's statutory definition. Olugboja does not ask the jury to
delineate the concept, named in rape's statutory definition, of 'consent'. But it
does ask the jury to delineate the further concept(s) into which the court
proceeded to render 'consent', namely 'real consent' and 'mere submission'.
The two tasks are thus at bottom surely identical.
Secondly, it is evidently the court's view that a degree of felt pressure is
compatible with consent, 'reluctant acquiescence' being described by the court
as a form of consentY There is some tension here with the fact that, as just noted,
the court leaves it to the jury to fix the transition point from consent to submission.
On the face of it, this would mean that a jury could validly decide to fix that
point at the minimum discernible quantity of felt pressure, so as virtually to
establish that consent does after all become submission if the victim feels herself
under any pressure whatsoever. So the idea seems to be that a trial judge should
give the jury a steer towards setting the transition point significantly further up
the scale of felt pressure than that. And, with or without such a steer, it in fact
seems likely that juries will commonly share the Court of Appeal's view. So it
is reasonable to regard it as part of the court's analysis of consent that a significant
degree of felt pressure is compatible with consent. Implementing that position,
a jury might decide, for example, that a woman consents rather than submits if
she has intercourse with her partner, despite her own lack of enthusiasm, so as
to avoid yet another late-night discussion of the state of their relationship. This
article uses the expression 'sufficiently grievous felt pressure' to denote a jury's
construction of the degree of felt pressure at which consent becomes submission.
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.

280

Legal Studies

Behind this view of consent is presumably the thought that we must, in the
reality of life, be prepared to commit ourselves to courses of action for reasons
which we view with regret, and not expect on that account to dissociate ourselves
from those actions. Perhaps a case can be made for the proposition that any degree
of unwillingness negates true agency, but since it appears that very many of the
decisions which we in fact take in the real world are compromised, to espouse
such a case would only leave us wanting to supplement agency with a further
concept of moral association which did cater for such decisions. Certainly as a
generalisation, then, the thinking in Olugbojaseems broadly supportable, though
perhaps it should be implemented more sympathetically as regards engagement
in sex than as regards some other kinds of activity.
Thirdly, it is implicit in the bounding of consent by reference to the victim's
feelings ('state of mind') that one victim's agreement to intercourse under
pressure might constitute consent while another's constituted only submission,
even though both were faced with the very same source of pressure in the very
same circumstances. (This is why this article, when describing the Olugboja
approach, tends to refer to 'felt pressure' rather than simply 'pressure'.) To be
sure, all those threatened with death or injury are likely to experience feelings
which juries are likely to construe as mere submission. But take the case where
a man induces a woman to have intercourse with him by threatening to inform
her fianc6 that she has been a prostitute; or the case where he promises to give
her a job if she will have intercourse with him.26 It is realistic to imagine that
different women in such situations - even different women with identically lurid
pasts and identically susceptible fiancds, or identical prospects of alternative
employment and identical abilities to survive unemployment- could experience
differing degrees of distress, as a function of their individual level of stoicism.
Under the Court of Appeal's analysis, therefore, it is quite possible that some
would fall one side of the line (established by the jury) between consent and
submission, whilst others fell the other side.
As a result of this feature, the handling of consent in Olugboja displays a
particularly acute form of the prevailing modem perception, that the offence of
rape should protect sexual autonomy, as distinct from other kinds of interests
such as freedom from aggression, albeit that in a particular case the latter may
also be incidentally affronted. 27 This focus upon protecting sexual autonomy was
not absent before Olugboja. Liability already arose where the victim was
unconscious, for example. 8 But the old rule (if such it was), whereby threats
only of death or violence negatived consent, could be seen as attending rather
to freedom from aggression than to sexual autonomy. Replacing it with a rule
whereby certain other kinds of threats had the same effect would in a sense have
moved the focus towards protection of sexual choice, but it would still have
26. The Court of Appeal in Olugboja 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 Mayers
(1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114.

Appreciating Olugboja 281

presented the paradox that the available choices were only those protected by
the rule: those engaging in intercourse under pressures not recognised by the
rule would have had no recourse, no matter how far from autonomous they in
fact felt. The approach adopted in Olugboja is crucially different, and avoids
this paradox. By rejecting the idea of a rule whereby some kinds of pressure do
negative consent, and other kinds do not, as a matter of law, in favour of a position
whereby everything depends on the victim's own feelings, it thus treats sexual
autonomy as a matter of personal choice, respecting individuals' freedom to set
their own limits to their consent, be these wide or narrow. 29
It will be noticed that there is in a sense some tension between the second
and third of these features of Olugboja. It might be said that, to remain consistent
with its concern to protect sexual autonomy, the court in Olugboja should have
recognised that consent ceases if a person agrees to intercourse under any degree
of felt pressure whatsoever, rather than stipulating that a degree of felt pressure
has to be taken in one's stride. The two features of the court's approach can
probably be reconciled, however. One can intelligibly say that the concern to
protect sexual autonomy aspires only to guard against relatively serious disruptions of the freedom to choose, but that the identification of such disruptions
properly looks to individuals' particular sensibilities. It remains a question in
its own right, of course, whether protection is validly to be restricted to cases of
relatively serious disruptions of the freedom to choose, but it seems arguable
that where the protection-under consideration is that afforded by an extremely
grave criminal offence, 3 such restriction is indeed valid.
Such, then was the work done in Olugboja. The Law Commission, however,
has recently taken a quite different approach.3 It would have the law revert to
the approach which may have obtained before 1976, and stipulate that certain
types of threat would (and others would not) negate consent.' The Commission
seems inclined to say that the only types of threat which would negate consent
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: Discourseson 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, Olugbojaallows 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 Comission Consultation Paper No 139, Consent in the CriminalLaw (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 ofpressure-sources, rather than as attending to the reaction ofthe individual victim.

282

Legal Studies

should be threats of force, detention and abduction. In developing this position,

however, it does not consider the ideas employed by the Court of Appeal in
Olugboja, that the question whether pressure (of any kind) negates consent
should depend on the reaction to it of the individual victim in question, and
that the degree of felt pressure which victims should not be expected to endure
is for the jury to fix. It may, however, be thought implicitly to share the view
that victims should be expected to take some degree of pressure in their stride:
this presumably underlies its sense of which types of threat should negate
consent.
EXTRAPOLATING OLUGBOJA TO CASES NOT
INVOLVING PRESSURE
Olugboja featured a victim who said 'yes' to intercourse under pressure. The
Court of Appeal's judgment, whilst certainly dealing with that context, does not
explicitly say anything about the treatment of consent in other kinds of case.
Does it have implications for other kinds of case?
At the level of the dichotomy between consent and submission, it does not.
It seems that, by definition, submission can be present only in the face of felt
pressure; so if consent consists of everything that is not submission, there is
consent in every case where the victim feels no pressure, no matter that we might
perceive some other problem. By this reckoning, then, there would be consent
even though a victim was insensible, as well as in cases where the victim is under
some misapprehension, and where she does not take a rational decision: three
kinds of case customarily seen as ones in which (to put it at its weakest) consent
may well not be present.
One might be tempted to reply that there is no problem; that the reasoning
in Olugbojadeals with the question of the boundary between consent and nonconsent in the presence of felt pressure, but aspires to no further role; that other
sections of the boundary between consent and non-consent remain to be defined
by other types of argument. One would need to take care in making such a
reply, however. Remember that the Court of Appeal in Olugboja held that
previous elaborations of the idea of consent had, under the 1976 Act, been
superseded by the 'ordinary meaning' of the word. There is no reason to think
that this determination was confined to the meaning of consent vis-A-vis the
problem of pressure; it appears to have been intended quite generally. That is
not the end of the matter, though. We have already seen that the Court of Appeal
did not leave the 'ordinary meaning' of consent at large, but instead gave an
exegesis of it. It could be said that the exegesis given (the consent-submission
dichotomy) related only to pressure, leaving room for other exegeses, not
provided by the court on that occasion, regarding other facets of consent. On
the other hand, however, it is tempting to see whether the reasoning in
Olugboja, although primarily about pressure, contains messages applicable
outside the area of pressure too. If it does, and if they can be worked up into
satisfactory treatments of the matters in question, something useful will have
been achieved. At the highest, the result would be a treatment of consent
exhibiting dialectical consistency, which could be a strength. At the lowest,
we would have described a form which the law might take, which could be
pitted against others.

Appreciating Olugboja 283

In fact, it is easy to see how insensibility can be regarded as non-consent under
Olugboja. It will be recalled that the court there identified consent as a 'state of
mind'; the contrast with submission leaving it as a state of feeling reasonably
favourably disposed towards intercourse. Given this, there is no consent where
the victim has no positive state of mind at all, ie is insensible.
The question of insensibility arose in the more recent case of R vLarter and
Castleton.3 3There, the defendants both had intercourse with a girl who, according
to the prosecution evidence, was insensible through drink. On the basis of this,
the prosecution invited the jury to conclude that she did not consent. The jury
did so, and convicted the defendants. The defendants appealed, complaining of
the judge's failure to direct in the terms of a formula hallowed by two cases
decided before the Sexual Offences (Amendment) Act 1 9 7 6 .4 The Court of
Appeal rejected the argument, invoking Olugboja for the proposition that,
whatever the position before 1976, under the 1976 Act the test became whether
the victim consented in the ordinary meaning of that word.35 Explicating that
ordinary meaning, however, the court unfortunately cited from Olugboja only
the latter decision's dichotomy between consent and submission,3 6 which, as we
have seen, does not have anything to say about insensibility, and omitted to cite
the reference to consent as a state of mind, which does. The court's conclusion
seems supportable, though, on the latter basis, as noted above.
But this vision of consent as a state of feeling reasonably favourably disposed
towards intercourse is of no assistance where the victim is under some misapprehension, or does not take a rational decision, for in such cases (ceteris
paribus) she will still feel reasonably favourably disposed towards intercourse.
Olugbojacan, however, be regarded as offering concepts by which to see consent
potentially negated in these kinds of case too. The key here is the point, explained
above, that the particular treatment of pressure in Olugboja is organised around
the protection of sexual autonomy against serious disruption. It may fairly be
said, then, that the protection of sexual autonomy against serious disruption is
the decision's fundamental preoccupation. On this view, the idea of consent as
a state of mind, and one contrasting with submission, is ultimately no more than
a tool for implementing that preoccupation. In cases of sufficiently grievous felt
pressure and of insensibility, the tool performs its work satisfactorily: it seems
33. Judgment delivered 1 July 1994; reported only, non-verbatim, at [1995] Crim LR
75. Thejudgment was delivered by Hobhouse LJ on behalf ofTudor Evans and Ebsworth
JJ and himself.
34. R vHoward [1966] 1 WLR 13; R vLang (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-11B, especially p 11A. In holding thus, however, the court
overlooked that the Howardformulation (n 34 above) had previously, but more recently
than both the 1976Act 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 Howardthat there is no rule that girls under
16 cannot consent, rather than to the 'resistance' aspect of the formula.
36. Transcript pp 1OD-11A.

284 Legal Studies

clear that a person who undergoes intercourse in either type of case suffers a
serious infringement of her sexual autonomy.37 But the tool does not satisfactorily
implement that preoccupation as regards the cases where the victim is under a
misapprehension, or does not take a rational decision. If we see Olugboja in the
manner suggested, however, the essential question becomes whether sexual
autonomy is seriously infringed in such cases too. We turn, then, to look more
closely at them.
Cases of 'sub-rational' agreement
If the concern of the law under Olugboja is the protection of sexual autonomy
against serious disruption, how should it react to cases where a victim says 'yes'
to intercourse but her powers of understanding or self-control are impaired?
Consider the kind of case that is at issue. Say a youngish girl willingly has
intercourse, or an adult woman who suffers from retarded development does so,
each having some idea of the nature and implications of sex. Or say a woman
willingly has sex when substantially disinhibited by an intoxicant, or perhaps
because she suffers from some abnormality (if such an abnormality there be)
which makes her unusually disinclined to say 'no' to sex.
The question for us, in our examination of Olugboja, is whether protecting
sexual autonomy means according legitimate expression to the sexuality of such
persons. Obviously, a case can sensibly be made to the effect that at least some
such persons' autonomy is better protected by proscribing sexual activity with
them, in that such activity would represent an exploitation rather than an
expression of that autonomy. But great care needs to be taken, for if rape is
profiled so as to proscribe sexual activity on this basis but more widely than is
truly warranted, the law will itself infringe sexual autonomy. 39 The task is

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 inR vBrown [1994] 1AC 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 (MentalPatient:Sterilisation)[1990] 2 AC 1. There, it

Appreciating Olugboja

285

therefore to establish the point of transition: the degree of understanding, in the

context of the activity in question, at which the one consideration loses its
hegemony to the other.
Olugboja itself has nothing explicit to say on the matter, of course. But, just
as the jury is required to draw the line between the level of felt pressure which
we are expected to take in our stride and that which we are not, it would perhaps
be characteristic of the general approach taken by the Court of Appeal to ask
the jury to establish the line at which the aim of allowing sexual expression yields
to that of preventing exploitation, and to decide whether the victim in question
fell one side or the other of it. That would not be an extraordinary position: the
matter is very much a social one, on which lay views are valuable, just as are
the matters of the degree of pressure that people should take in their stride, and
of what counts as 'dishonesty'.
All the extant authority takes a different approach, however, preferring to
assert that the law has already performed the general line-drawing exercise,
arrived at a formula describing the line, and asks the jury merely to apply that
formula. Of course, there is some variation in view as to the right content for
the formula. In the pre-1976 cases, some statements claimed that consent
presupposes a high level of understanding and of self-control. 4 Others did not
openly dissent from this, but took a more muted tone. 41 Still others, without
explicitly articulating a different position, were apparently prepared to find
consent in situations where there must surely have been a degree of departure
from the paradigm.42 Others again, while agreeing that there was no consent if
the woman did not know what was happening at all, were happy to say that
consent could validly arise from 'mere animal instinct' on the part of a woman
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 Iowe 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)Gillickv WestNorfolk andWisbechArea HealthAuthority[1986] AC 112, 189CE, 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 (MentalPatient:
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.

286

Legal Studies

who was severely retarded.4 3 More recently, in the direction approved by the
Court of Appeal in Larter and Castleton, it was said: 'the question is did [the
victim] at the material time understand her situation and was she then capable
of exercising a rational judgment?'" For all the variation in content, however,
the assumption is throughout that the jury will not be asked to address the anterior
question of where the line should be drawn. An essentially similar approach has
now been taken by the Law Commission.45 After noting that the object of the
exercise is to fix the right transition point between allowing sexual expression
and preventing exploitation (the anterior question), 6 the Commission suggests
fixing the transition point by a formula making rather full reference to the victim's
ability to understand or retain the information relevant to the decision in question
and to her ability to make a decision based on that information. 47
On the other hand, the concepts used in all these treatments appear to be
matters of degree, which still require legislative decisions to be made, by juries,
in individual cases. So it might be said that the effect of this approach is no
different from the approach apparently predicated by Olugboja,described above,
of leaving the jury to identify the point where autonomy is better protected by
proscribing sexual activity than by legitimating it. But this assessment might
not be accurate. Whilst the ideas of understanding and rational judgment are
certainly part of the apparatus by which one might identify that point, reference
to them alone does not offer a clear presentation of what is at stake, in that they
contain no allusion to the countervailing importance of allowing sexual activity
to such persons. Moreover, speaking in terms of understanding and rational
judgment, rather than sufficient understanding and sufficiently rational judgment,
might easily lead a jury to think that they were being told, as a matter of law, to
override the victim's choice whenever these faculties were perceptibly impaired
at all. And that might by no means be the place where they would have wished
to draw the line if they had been asked to produce their own assessment of the
dictates of protecting autonomy.
Cases of misapprehension
If the concern in Olugbojais to protect sexual autonomy, what is that decision's
message for cases in which a person has intercourse under some form of
misapprehension?
It is not difficult to conclude that consent should be seen as absent in at least
some such cases. Autonomy predicates choice, and someone whose perception

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 inR vDee (1884) 15 Cox CC 579, 594 (see n 40 above).
44. Transcript p lE. These words can have made little or no difference inLarterand
Castleton itself, of course, for the victim there appears to have been so close to
insensibility, if not actually insensible, that to talk of understandingher situation and
exercising a rationaljudgment is to be unnecessarily refied.
45. Law Commission Consultation Paper No 139, Consentin the CriminalLaw(1995)
Part V.
46. Op cit para 5.13.
47. Op cit paras 5.3, 5.16.

Appreciating Olugboja

287

of what she is about to do is based on a false understanding may easily be

described as not 'choosing' to do it in a satisfactory sense of the word. But should
all mistakes be seen in this way, or only a subset of them?
In its own context, Olugboja established that it is not in every case of felt
pressure that a victim's 'yes' is prevented from being consent. It laid down that
the jury must decide what degree of felt pressure marks the limit of consent (its
boundary with submission, referred to in this article as 'sufficiently grievous
felt pressure'), and compare this with the degree of pressure felt by the individual
victim in question. As we saw earlier, the court was careful not to state that any
particular type of pressure-source will induce excessive felt pressure: everything
will depend on the make-up of the victim concerned, in her own circumstances.
A threat which had a devastating effect on one victim might appear trivial to
another, and if both had intercourse the latter might be held to have consented
when the former did not. It is this solicitude for the individual in Olugboja that
marks its commitment to protecting sexual autonomy.
Clearly, this precise analysis is not directly applicable to cases of mistake.
The feelings of a person who has intercourse under some misapprehension are
no different at the time of the intercourse 48 from those which she would have
experienced if she had been under no misapprehension. What can be transferred, however, is the underlying solicitude for the individual. That is to say,
we should ask whether the matter about which the victim was mistaken is so
important to her - whether or not to other people - that her agreement to
intercourse cannot rightly be regarded as consent. By this way of thinking, it
is improper to rule that mistakes as to certain matters do negate consent, but
that mistakes as to other matters do not, as a matter of law, as was done in the
past.49 The defect of that approach, from this point of view, is that it treats the
factors potentially influencing all participants in sexual intercourse as influencing them according to a uniform pattern, when this may well not be the case.
Take mistake as to the validity of a marriage ceremony which the victim has
just undergone with the defendant. For some women, it may be accurate to say
that it is not crucial to their willingness to have intercourse with a man that they
are validly married to him. For others, however, this is surely not the case. Say,
for example, a woman's culture leads her to attach very great importance to
entering marriage a virgin. She is induced to have intercourse with the defendant
by his staging a mock marriage ceremony, and thus additionally loses the
virginity which she meant to bring to her real marriage. Protecting her sexual
autonomy after the manner of Olugboja surely means recognising the significance which the validity of the ceremony holds for her, and saying that she
did not consent to the intercourse.
On the other hand, take mistake as to identity. For many women the identity
of their sexual partner will be crucial, so that a mistake in this regard will indeed
negate their consent. But imagine that a prostitute has intercourse with a client
who tells her that his name is John Doe, whereas it is actually Richard Roe. It
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; PapadimitropoulosvR
(1958) 98 CLR 249.

288

Legal Studies

may well be that his identity is of little or no real interest to her, and so on this
approach we may wish to say that she has consented despite her mistake.
The Olugboja approach has one further message for this type of case.
Remember that, dealing with cases of pressure, the court in Olugboja was clear
that some degree of felt pressure is consistent with consent, as opposed to
submission. The case becomes one of submission only when the felt pressure
becomes so grievous as to take it over what the jury regard as the line between
the two states. This position has implications for cases of mistake too. Just as a
degree of felt pressure routinely attends our decision-making, so too, surely, does
a degree of mis- or non-understanding. And just as the former is morally
inconsequential, so too should be the latter. The test should, therefore, not be
whether the victim would have attached some importance to the matter as to
which she was mistaken, nor even whether she would have decided against
having intercourse if she had known the truth. It should be possible to find either
of these propositions to be true and still conclude that she consented. Analogously
with the question whether the felt pressure was so grievous as to negate her
agency, the test should be whether the matter as to which she was mistaken was
so important to her that her misapprehension similarly negates her agency. Say
a woman's friendship with a man is deepening, and her feelings are approaching
those with which she would expect to embark on sexual relations with him, when
her decision to do so is precipitated by the mistaken belief that she is about to
have to go off for a month on business, during which time she fears he may
become involved with another partner. We might say that the matter as to which
she is mistaken, whilst analytically a sine qua non of her decision to have
intercourse, did not play such a compelling role that she should be dissociated
from her decision on account of it.
The test just outlined is obviously inexact. The phenomenon underlying it
appears to be one of degree. In the context of pressure, the court in Olugboja
proposed the word 'submission' to mark the point of transition. That word may
give juries some intuitive handle on the issue confronting them. It is hard to
suggest an equally snappy counterpart for juries to use in the context of mistake.
It may be impossible to do better than to have them ask whether the subjectmatter of the mistake was something of major moment in the victim's decision.
Despite its lack of a key word like 'submission', that test may be no more
imprecise than its counterpart in the context of pressure.
So it is possible to derive from the reasoning in Olugboja the position that
consent is negated by mistake if the matter as to which the victim was mistaken
was of sufficiently (in the view of the jury) major moment in her own decision
to have intercourse with the accused. This approach was not, however, taken by
the Court of Appeal in two recent decisions in this area, R v Elbekkay 0 and R v
Linekar.51 And it is the rival approach of these two decisions which is now
favoured (albeit without discussion of the alternative) by the Law Commission. 52
50. Judgment delivered 12 September 1994; reported only, non-verbatim, at [1995] Crim
LR 163. The judgment was delivered by McCowan LI 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 CriminalLaw(1995)
paras 6.11 et seq.

Appreciating Olugboja

289

In Elbekkay, a woman had willing intercourse with the defendant, but did so
under the impression that he was her boyfriend. (She was sleepy and drunk, and
did not open her eyes as he got into bed with her and began to have intercourse.)
The defendant was convicted of rape, but appealed, contending that these facts
could not amount to the offence. He argued that the only case in which willing
intercourse under a mistake" as to identity could constitute rape was that where
the victim wrongly believed she was having intercourse with her husband. This
argument was mounted on the basis of the pre-1976 law.' The Court of Appeal
skirmished with the argument, giving the impression of finding it unpersuasive
even as an account of the old law.55 But in the end, the court left the whole issue
behind, and relied instead on the ruling in Olugboja that the Sexual Offences
(Amendment) Act 1976 had made a fresh start.5 6 As to the content of the new
test, however, the court did not advert to the approach suggested here as deducible
from Olugboja, whereby there should be no assertion that particular types of
mistake, such as mistakes as to identity, do or do not negate consent across the
board, everything depending instead on the priorities of the individual victim.
On the contrary, the court made just such an assertion. It stated that the jury could
not have failed to conclude that the victim did not consent,5 7 and added its own
finding to the same effect, saying: 'The vital point about rape is that it involves
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 inElbekkay
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, 255G; this was likewise the
view of the High Court of Australia in PapadimitropoulosvR (1957) 98 CLR 249,260;
and it is followed generally in Law Commission Consultation Paper No 139, Consent in
the CriminalLaw (1995) paras 6.24-6.33.

54. InR vBarrow (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 inR vDee (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, Barrowstill applied.
55. The court failed to consider the other authorities in point. Supporting Barrow,there
were the cases of R vJackson (1822) Russ & Ry 487; R v Saunders(1838) 8 C & P 265;
R v Williams (1838) 8 C &P 286; andR 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 v Clarence(1888) 22 QBD 23, 34,44.
56. Transcript p 11A-D.
57. Transcript p lD.

290

Legal Studies

the absence of consent. That absence is equally crucial whether the woman
believes that the man she is having intercourse with is her husband or another. 58
In Linekar, the jury found that the defendant had tricked the victim, a
prostitute, into having intercourse with him by promising to pay her 25, when
he had no intention of doing so. They convicted him of rape on this basis. The
Court of Appeal quashed his conviction. The court held that a victim who mistook
the circumstances nevertheless consented unless her mistake was as to the nature
59
of the act itself, in that she failed to understand it to be sexual intercourse at all,
6

or was as to the identity of the other participant. The victim's misapprehension

here was of neither of these types, so rape had not been committed. The court
61
arrived at this position through a thorough review of the pre-1976 authorities.
In this, of course, the court overlooked the ruling in Olugboja that the 1976 Act
made a fresh start. The more important point, however, is that the court's analysis
takes the form of an assertion that some kinds of mistake negate consent, and
others do not, as a matter of law. This analysis is essentially the same as that
arrived at, as a fresh start, in Elbekkay. Like the latter, it is at variance with the
approach deducible from Olugboja, explained above. To reiterate: under the
Olugboja approach, the jury would be invited to consider whether the defendant's
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 rape 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 Flattery
(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 vJackson (1822) Russ & Ry 487;R vBarrow (1868) LR 1 CCR 156;R vFlattery
(1877) 2 QBD 410; R vDee (1884) 15 Cox CC 579; R v Clarence (1889) 22 QBD 23; R
v Williams [1923] 1 KB 340; Papadimitropoulosv R (1956) 98 CLR 249.

Appreciating Olugboja

291

intention to pay was of sufficiently major moment in this particular woman's

decision to have intercourse with him. 62The woman in question being a prostitute,
that question might very possibly find itself answered in the affirmative.
The Law Commission has now proposed a rule whereby consent would be
negated by mistakes as to the nature of the act or as to the identity of the
perpetrator, but by no other mistakes 63 (except perhaps for one additional type:
mistakes as to the perpetrator's freedom from sexually transmissible disease 6).
The approach is essentially the same as that taken in the old cases and in Elbekkay
and Linekar. The Commission does not discuss the possibility of attending, as
the approach deducible from Olugboja would have us do, to the different
importance which different matters may have for different people.
THE STRENGTHS AND WEAKNESSES OF OLUGBOJA
We have canvassed three main features of the Olugboja approach. They are:
first, that it looks to the importance which any pressure-source or mistaken belief
or assumption had for the individual victim; second, that it expects victims to
take some degree of felt pressure and mis- or non-understanding in their stride;
and third, that it leaves the fixing of that degree, and other boundaries of consent,
to be settled by the jury. This approach differs from the rival approach taken in
the three new decisions of Larterand Castleton,Elbekkay and Linekar (and, in
its essentials, in the pre-1976 cases), and also by the Law Commission, in respect
of the first and third of these features. At these points, the rival approach maintains
rules whereby certain kinds of pressure-source and mis- or non-understanding
negative consent, and they alone. The second feature of the Olugboja approach
may, however, be perceived as immanent in those rules.
Should we prefer the Olugboja approach, or its rival? Approaching this
question, one might be tempted to consider each of the two differences separately.
But that would be a mistake. The Olugboja approach's resort to jury legislation
is in fact bound up with its attentiveness to the individual victim. Say we wanted
the law to attend to the individual victim but wished to do so by means of a fixed
rule, making no explicit call for input on the part of the jury. Assuming we also
accepted the idea that victims should take some imperfections in their stride,
the rule would have to read something like this: 'there is no consent if the victim
felt herself to be under a serious degree of pressure, or failed to understand some
matter which was of major moment to her.' The question might immediately be
asked: 'how serious is "serious", and how major is "major"?' The answer could
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, Consentin the CriminalLaw(1995)
para 6.18.
64. Op cit para 6.19.

292

Legal Studies

only lie in the determination of the jury. So attentiveness to the individual victim
would entail jury legislation in any event. The court could have left matters thus,
of course, but instead it explicitly recognised the necessity for jury legislation
which it had created, and went on to provide for explicating to juries the nature
of the issue that they are being called upon to decide. This provision, though
perhaps not absolutely necessary, appears an intelligent one; the transparency
which it is designed to lend to the legislative task seems calculated to render the
jury legislation of a higher quality.
Our comparison therefore needs to be between an approach which is attentive
to the individual victim and consequently requires jury legislation to set the
boundaries of consent, and one which announces that consent terminates under
certain conditions which do not vary with the individual victim, such as fear of
serious personal injury and mistake as to identity or the nature of the act.
One might certainly favour the Olugboja approach on account of its
attentiveness to the individual victim, which in turn, as we saw earlier, renders
it relatively acutely calculated to protect sexual autonomy. This approach gives
vitiating effect to any pressure or mistake which is of sufficient significance so
far as the victim personally is concerned, but to no other pressure or mistake.
To be sure, any plausible reading of the concept of consent will have some claim
to make rape protect sexual autonomy. 65 But an approach which uses a fixed
formula to dictate what vitiating factors are both necessary and sufficient will
fail to engage with the fact that different people respond differently to the same
pressures, and attach differing priorities to the matters about which they may be
mistaken. By contrast with the Olugboja approach, the fixed formula will give
vitiating effect to some pressures and mistakes which certain people would not
regard, so far as they themselves are concerned, as of such significant moment;
and on the other hand it will deny vitiating effect to some pressures and mistakes
which certain people would regard, so far as they themselves are concerned, as
having the necessary moment. It protects such people's autonomy to the extent
that autonomy comes in a standardised package; but fails to do so if we regard
that idea of autonomy as self-contradictory, believing instead that autonomy can
only be about individual choice.
If the fixed formula approach is viewed against a desideratum of protecting
sexual autonomy, therefore, it has shortcomings. These shortcomings may be
the result of the formula's not being directed univocally at the invasion of sexual
autonomy at all, but attending additionally to certain other kinds of wrong. The
point can be seen clearly by recalling that the formula was traditionally rendered
in the brocard that consent was negatived by 'force, fear or fraud'. The sense of
this brocard seems to have been that the defendant must have hurt, threatened
to hurt, or tricked the victim. Such actions are wrongs in themselves, independently of the fact that the defendant went on, specifically, to have sexual
intercourse with the victim. Now for rape to be targeted on a combination of
wrongs in this way was not unintelligible. Organised thus, rape was of similar
design to such other offences as robbery and obtaining by deception. Even in its
fixed formula version, however, the offence has moved on from this position.
In particular, it is now accepted that there is no need for a victim's mistake (as
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.

Appreciating Olugboja

293

to the nature of the act or the identity of the defendant) to have been brought
about by the defendant's fraud: it can have been spontaneous. 66 The rationale
behind this movement may well have been a perception that the victim's sexual
autonomy is invaded just as much where she is spontaneously mistaken as where
she is tricked, together with a further perception that the invasion of sexual
autonomy merits proscription for its own sake, regardless of the presence of a
collateral wrong. But the movement has left the fixed formula approach in
something of a no-man's-land. Whilst no longer particularly directed at those
who have intercourse through a collateral wrong, neither, as we have seen, does
it fully meet the aim of protecting sexual autonomy. From this point of view,
then, there appears much to be said for the Olugboja approach, which, sharing
the perception that the invasion of sexual autonomy merits proscription for its
own sake, puts this perception more exactly into effect.
But from another point of view, one might disfavour the Olugboja approach.
It might be said to be indeterminate, and so to make the law unpredictable, and
to raise a danger of like cases not being treated alike, rendering the law unjust.
One could not necessarily say on the basis of the defendant's actions and the
externally visible circumstances whether a victim who agreed to intercourse
consented or not; it would depend on the make-up of the individual victim and
on the jury's assessment of what people must take in their stride. And in the
face of the same actions and externally visible circumstances, one assenting
victim might be found to have consented when another might not, either because
of the difference in their make-up or because two juries took different views as
to what people must take in their stride. Under the fixed formula approach, by
contrast, it can be predicted what actions and externally visible circumstances
will and will not lead to liability, and the answer will not vary from one case to
another.
In fact, the Olugboja approach's attentiveness to the individual victim does
not itself entail that the law's impact will be unpredictable or that like cases will
not be treated alike, at any rate in any way which should be regarded as producing
injustice. Assuming that the construct of consent itself remains constant, there
is no question of like cases not being treated alike. A defendant will be guilty of
rape if he has intercourse without consent, and only then. Differences in how
that comes about (or likenesses between cases where it does come about and
cases where it does not) are nothing to the point. Unpredictability at first seems
more of a problem, in that it may not be easily perceptible to a man about to
embark on intercourse whether his partner's agreement is of a quality which
would not count as consent under this approach. But the mens rea rules for rape
make liability depend on it being shown, at the lowest, that the defendant did
not care whether the victim consented, 67 so there will in fact be no liability unless
he could indeed have predicted that his partner might not be consenting.
But if we now recall that the Olugboja approach necessarily involves resort
to jury legislation, the worries may return. The concern would be less over
unpredictability - the argument from the mens rea rules appears to apply here
too - than over the possibility that like cases might not be treated alike. Imagine
66. This is explicitly recognised in Linekar [1995] QB 250, 255G, 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.

294

Legal Studies

that two defendants induce exactly the same degree of felt pressure in their
victims. One might be convicted while the other was acquitted, because their
respective juries take different views as to how much pressure people should be
expected to take in their stride. Whereas, under the rival aproach, there would
seem to be consistency, in that threats of (say) serious injury would lead to
conviction, whilst other forms of pressure did not.
This contrast between the Olugboja approach and its rival is not polar,
however. Although the latter defines the boundary between consent and nonconsent by means of rules, it too gives juries a legislative role. This role is of a
very familiar kind, endemic to the law as a whole and, in the present context, to
its use of juries. It may be briefly stated. There is a degree of discretion inherent
in the imprecision of the concepts used in the rules in question, which juries are
asked to apply: most unmistakably, in the concepts of 'serious injury', of 'the
nature of the act', of 'understanding' and of 'rational judgment'. And there is
also a degree of discretion inherent in the very use of juries as fact-finders and,
beyond that, ultimate judges of guilt, especially when juries are not invited to
give reasons for their determinations and indeed are in effect prohibited from
doing so. These discretions invest juries with the opportunity to bring into their
decisions whatever values they may please, and so in effect to legislate for the
applicability of those values.
But although the contrast between the Olugboja approach and its rival is thus
not polar, there is still a difference between them. The most striking feature of
the form ofjury legislation just canvassed is that, under it, juries are not told of
their legislative role. It may be surmised that the lengths to which individual
juries are prepared to go in that role will vary significantly, even in cases which
are identical in all other respects than the composition of their jury. Nor, in the
event that juries appreciate their opportunity to legislate, do they receive any
guidance as to the kinds of values that they would be ethically justified in bringing
into play. In the context of rape, for example, they might follow the reportedly
common idea that there is no rape if there is no violence, or if the victim 'has
only herself to blame' for what occurred, which they may infer for example where
she accepted a lift from a stranger or was dressed 'provocatively'.68
Whilst the Olugboja approach explicitly gives juries a legislative role on
certain aspects of the definition of rape, it does of course not supplant, but rather
exists alongside, the opportunity for jury legislation of the other variety, just
discussed, as regards other aspects of the offence's definition. There may be some
interaction between the two, however. One hypothesis is that asking a jury to
legislate under the Olugboja approach may mute any tendency that it may have
to legislate otherwise, in that juries possessing legislative inclinations may find
those inclinations channelled into the matters to which the Olugboja approach
asks them to attend. A second, equally plausible, hypothesis is however to the
opposite effect: that asking the jury to engage in the delineation of a particular
aspect of the offence under the Olugboja approach may whet its appetite to
legislate generally, in that it may feel more assured of the appropriateness of
that activity.
So whilst both approaches involve jury legislation, with the consequent
possibility of like cases not being treated alike (and other difficulties), it is
68. See J Temkin Rape and the Legal Process(London 1987) pp 7, 73-75, and further
references there.

Appreciating Olugboja

295

certainly arguable- though it is not incontrovertible- that the Olugboja approach

is more exposed to this concern than its rival. One might respectably conclude
that the rival approach is preferable, therefore.
In terms of the protection of sexual autonomy, then, the Olugboja approach
seems preferable to its rival; but from the point of view of securing the determinacy apparently needed to promote justice, the converse may be true. Which
consideration should take precedence?
Consider the suggestion that determinacy is of paramount importance. The
Law Commission takes this view, provisionally recommending rules fixing
the type of pressure-source and mistaken beliefs which would vitiate consent.
This is an understandable choice for the Commission to make. Determinacy
is one of the desiderata which the Commission posits for its criminal code
project, as promoting (the Commission has at different times contended69) such
values as the interest of citizens in knowing how to keep within the law, and
the more efficient operation of the criminal process. Whether or not they are
necessarily intrinsic to the idea of codification, these values are certainly not
negligible. The present arrangements for criminal law, however, reveal an
attachment to values with different implications. Consider especially the
persistent perception that jury trial is a desirable feature of the criminal justice
sysem, and indeed that the institution of the jury is constitutionally of great
importance. 70 It is hard to make sense of this perception if the role of the jury
is seen as confined to mechanical fact-finding and application of determinate
rules: it must assume a more substantive contribution, which surely brings
indeterminacy in its wake. (The Law Commission has had little to say about
the relationship between its favoured values and the retention of jury trial.)
One might conceive that more substantive contribution as taking the form of
individual juries operating, to a degree which will vary with the assertiveness
and social dissatisfaction of their particular membership, in a 'loose cannon'
fashion, as by introducing their own values through the interstices left by opentextured rules, or even by returning perverse verdicts. But that would not
satisfactorily account for the constitutional premium put on the jury. The
constitutional premium seems satisfactorily accounted for only if it is envisaged
that juries will be apprised of their role and alerted to the issue(s) being left to
them 7 - as under the Olugboja approach, whereby the jury is to be asked to
settle the degree of pressure which people should be expected to take in their
stride. In which case, the message appears to be that indeterminacy from this
69. See G de Bfirca 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 154157, 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 ofLaw (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 nn 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 andPractice(Cambridge 1985) pp 75 et seq. See
also S Gardner 'Is Theft a Rip-Off?' (1990) 10 OJLS 441, 447-448.

296

Legal Studies

source is not to be regarded as a major worry, and could easily be an acceptable

price to pay for securing the ability to be attentive to the individual victim.
Even if one followed the latter argument, however (and one might contend
that the constitutional premium put upon juries is ill-conceived; that the jury is
a mere historical relic), it would not mean that we should automatically regard
attentiveness to the individual victim as paramount. In truth, this consideration
and the claims of determinacy need to be rather carefully weighed against one
another. This may be done best with reference to the particular context under
discussion. It may be that in some contexts in which the law refers to consent, it
is more appropriate that emphasis should be placed on attentiveness to the
individual victim, accepting the indeterminacy that that entails; whilst in other
contexts it is more appropriate to set greater store by determinacy, at the expense
of being inattentive to the individual victim.
For example, one might prefer determinacy in fields such as surgery and other
forms of invasive medicine and dentistry, contact sport, and perhaps tattooing
and piercing. These activities are for the most part kept from being offences of
violence by consent. There appears to be a major interest in allowing proponents
of them to proceed safely on the basis of a standardised, determinate, formula
as to the presence of consent. Under the Olugboja approach, a proponent would
have to ponder whether a victim's apparent acceptance of the relevant invasion
was 'real consent' or was instead the product of sufficiently grievous felt pressure
(induced, say, by an unassertive nature being overborne by all manner of social
pressures) or of a mistake as to something of major moment to the particular
victim. Clearly, it is regrettable if people find themselves undergoing invasions
when they do not give 'real consent', and it is arguable that it would be no bad
thing to require the proponents of such activities first to consider the possibility
that this might be the case. But such a requirement might perhaps introduce a
higher transaction cost than the proponents could well absorb, and so bite into
their readiness to undertake the activity in question. And if society either
(paternalistically) wishes the activity to occur, or (individualistically) wishes
there to be the reasonably easy opportunity for it to occur, that would be a loss. 72
If we turn back to rape, however, it seems very arguable that the Olugboja
approach is the preferable one. The activity involved in rape is sexual intimacy.
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 Boardof Governors ofthe Bethlem Royal
Hospitaland theMaudsley 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
Hospitaland the MaudsleyHospital [1985] AC 871, 888G-H.

Appreciating Olugboja 297

In our culture, sexual intimacy appears to be regarded, at any rate in ideal terms,
as a form of expression in which there is and ought to be scope for great
individuality. Uniformity and predictability are not prized; if anything, the
reverse. The recent redefinition of rape as covering not only vaginal penetration
of a woman but also anal penetration of a woman or a mann3 may emphasise the
point. It may be seen as a statement by the legislature of its recognition that sexual
intimacy, the protection of which against abuse is the task of rape, occurs in a
variety of different but equipollent forms. If all this is right, it is quite out of
place to say that the law should give priority to maintaining a relatively determinate concept of consent, in order that those engaging in sexual intercourse
may know without too much trouble where they stand. Given that the whole point
should be for the participants to express themselves in all their individuality, it
seems to follow that the right course for the law, in constructing its concept of
consent in this context, is to accord primary importance to personal make-up
and preference. At any rate in its own field of rape, therefore, the somewhat
under-appreciated decision in Olugbojamay be concluded to possess substantial
wisdom.

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