How is Consent Defined in Rape Law?
When a person lodges a police complaint about rape or sexual assault, the police invariably asks the question “was it consensual?” or “was there consent?
The complainant is supposed to be able to answer this readily. However, from our experience, many people do not understand what the law means by consent.
Definition of Consent
Consent is the communication of agreement by which one person allows another person to give and/or receive sexual acts. Anything done without consent trespasses on one’s rights to bodily integrity and sexual autonomy. If the person being penetrated consented to the act, the offence of rape or sexual assault cannot be established.
Consent must be freely and voluntarily given. Consent isn’t concluded just from saying ‘yes’ or ‘no’. Other words and conducts are crucial to reach the conclusion as to whether consent existed.
FAQs about Consent
1. “I (the victim) was drunk”
Consent is defined negatively under Section 90 of the Penal Code. Section 90 states that there is no consent if the person giving the consent is unable to understand the nature and consequence of his consent due to unsoundness of mind, intoxication or influence of drugs.
Thus a person’s drunken-ness negates consent when the person is so drunk as to be unable to understand the nature and consequence of her consent.
2. “I liked him and we were dancing closely earlier in the night”
Consent must be to the act in question i.e. penetration and not some other act. Thus, B’s consenting to petting or oral sex or dancing with A does not mean that B has consented to any other act, such as, vaginal penetration. A has no right to continue further than what B had consented to.
In Public Prosecutor v Ong Mingwee (Wang Mingwei), the accused claimed that the victim had tried to seduce him by dancing closely and sexily with him at Zouk and asking him to be her boyfriend. The Court found that “by no stretch of the imagination can the victim’s conduct of dancing in what he claimed to be a seductive manner be construed to mean that she would therefore be willing to have sex with him subsequently in his flat. Even his claim that she asked him to be her boyfriend ….cannot be interpreted to mean that she would therefore be prepared to have sex with him.”
3. “I was so scared I did not struggle”
In PP v Teo Eng Chan , four men had sex with a 16 year old girl. They claimed that they believed she had consented, even though she had not. The girl did not struggle.
The accused argued that the absence of injury and struggle indicated consent. The court rejected this argument and found that even though there was no injury or resistance, there was no consent. The victim had submitted because of the presence and threats of the four men and the fact that she was in a deserted quarry on a dark night.
Submission does not necessarily imply consent.
The judge in Public Prosecutor v Iryan bin Abdul Karim and others held: “Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves submission but the converse is not true.”
In Augustine Foong Boo Jang vs Public Prosecutor, it was held that there was no consent even though the maid did not struggle against her male employer. The dominant position of an employer over his maid and her financial dependence on him caused the maid to submit to the employer’s advance even though she did not consent to it.
4. “He is / was my boyfriend”
If B has, or had a relationship with A—for example, if A was B’s past or present boyfriend, or a date, that does not mean that A can do anything he wants with B without B’s consent.
Rape or sexual assault may even occur in between consensual sexual acts a couple engages in. B’s consent cannot be conveniently extrapolated to where it is absent, even if B has consented to sexual acts prior and after the act in question.
In PP v Mohamad Liton, the parties had consensual sexual relations at one point after the break-up, but then the man tied her up, raped her at knifepoint, and committed sodomy on her. She then had sex with him once more willingly. The court found that there was no consent even though the parties had sex before and after the incident.
5. “I thought she was a consenting party”
To establish a defence of mistaken consent, the burden is on the accused to prove on a balance of probabilities that he had in good faith believed that the complainant had consented to his having sexual intercourse with her. The court would assess the circumstances to see whether it had been reasonable for the accused to have this belief.
In P v Teo Eng Cha, the judge held that even if any of the men had actually mistakenly believed that she had consented, he had come to that belief without due care and attention, and the defence could not stand.
In assessing whether there was consent, the court would pay attention to the surrounding circumstances of the sexual act in question, especially for any signs of struggle, coercion or inebriation.
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