R v Olugboja [1982] QB 320

Facts

  • Two young women were taken to a remote area and raped by two men.
  • The first woman was raped by both defendants.
  • The complainant in Olugboja's appeal was threatened with violence by one defendant while the other raped her.
  • The defendant who threatened her did not use physical force, but the complainant submitted due to fear.
  • At trial, the judge told the jury there was a difference between consent and submission but gave no further details.
  • The defendants were convicted, and Olugboja appealed, arguing that the explanation of consent was insufficient.

Issues

  1. Whether the trial judge’s explanation of the difference between consent and submission was sufficient.
  2. Whether submission due to fear or pressure amounts to legal consent in the context of sexual offences.
  3. What constitutes real consent in the assessment of sexual assault cases.

Decision

  • The Court of Appeal upheld the conviction.
  • The Court clarified that the meaning of consent in sexual offences is a factual issue for the jury.
  • The Court held that consent must be “positive” and not merely a lack of resistance.
  • It was recognized that there is a spectrum between reluctant compliance and total lack of consent.
  • The judgment emphasized that the victim’s state of mind, including the role of fear or pressure, is critical in determining true consent.
  • The Court explicitly rejected the idea that submission alone constitutes consent.

Legal Principles

  • Consent must be freely and voluntarily given and must be “positive,” not simply the absence of resistance.
  • Submission stemming from fear or pressure does not equate to consent.
  • Juries must examine all circumstances, including threats (even indirect) and the victim’s state of mind, to determine if consent was real.
  • The distinction between consent and submission is essential to protect victims who comply due to fear, even without physical resistance.
  • The principles outlined align with the later statutory definition in Section 74 of the Sexual Offences Act 2003: consent is agreement by choice, with both freedom and capacity to choose.

Conclusion

R v Olugboja established that consent in sexual offences must be an act of free and voluntary agreement, and that compliance or submission due to fear or pressure does not constitute valid consent. This distinction has significantly influenced subsequent case law and the development of statutory definitions in the Sexual Offences Act 2003, supporting protections for victims of sexual assault.

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