Mixed Test for Consent in Rape

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A Mixed Test for Determining Consent in Rape: Is it Possible? On September 17, 2012, The Law Reform Commission of Hong Kong (HKLRC) released the “Rape and Other Non-consensual Sexual Offences” consultation paper. One of their recommendations was to impose a mixed (subjective and objective) test for the issue of consent in rape . They proposed to move away from the traditional subjective approach that originated from DPP v Morgan, and include an objective component to assess the reasonability of the accused’s belief of the victim’s consent . In DPP v Morgan, the House of Lords held that an accused would not be guilty of rape if, at the time of intercourse, the accused genuinely believed that the complainant was consenting . The consultation paper now suggests that to convict an accused of rape, prosecution must prove that the complainant did not consent and the accused did not reasonably believe that the complainant consented . Not only does the belief has to be genuine, as would satisfy the Morgan principle, it also has to be objectively reasonable having regard to all circumstances. This recommendation seems overly ideal and poses great challenges for implementation. Primarily, measuring the defendant’s purely subjective belief about consent against a socially acceptable level of reasonableness is nearly impossible, as there is strong difficulty in making a benchmark for such private conducts. The extent of what constitutes reasonable acts of sexual nature varies depending on one’s gender, culture, etc. There are too many anomalies in sexual behavior that a consistent scale of objective rationality seems not viable. The second problem rests with stereotyped victims. Consider the case of a claimant who falls within a common stereotype (i.e. one being provocatively dressed). According to a survey in 2000 by the Association Concerning Sexual
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