R v Olugboja (Stephen)
Court of Appeal
Citations:  QB 320;  3 WLR 585;  1 All ER 443.
The defendant and his co-accused offered to drive the complainant and her friend home from a disco. Instead, he drove them to the co-accused’s bungalow. The girls refused to enter the building and tried to walk away. The co-accused then followed them and raped them. The co-accused forced the two into his bungalow and dragged off the friend.
The defendant told the complainant that he was going to have sex with her. The complainant told him what the co-accused had done and told him to leave her alone. The defendant then instructed her to take off her trousers. When she complied, he had sex with her.
The defendant was convicted of rape. The judge directed the jury that they could find that the complainant had not been consenting even though she did not scream or struggle during sex. The defendant appealed his conviction on the basis that this was a misdirection.
- If a complainant submits to sexual intercourse, is it still open to the jury to find that she did not consent?
The Court of Appeal upheld the conviction. Lack of consent is not limited to cases where the complainant is forced, threatened or deceived into sex. While the complainant had submitted to sex, she was trapped in the bungalow and had already been raped. The jury was entitled to find that she had not consented.
This Case is Authority For…
Mere submission to sex does not necessarily evidence consent. There is no need for the prosecution to demonstrate that the woman’s submission was due to fear, force or fraud. The court explained that:
‘Although “consent” is an equally common word it 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….The jury…should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent…They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances; and in particular, the events leading up to the act and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place.’