IN THE EUROPEAN COURT OF HUMAN RIGHTS
(Case No. 39272/98)
BETWEEN
M.C.  Applicant
and
BULGARIA  Respondent

WRITTEN COMMENTS
BY
INTERIGHTS
THE INTERNATIONAL CENTRE FOR THE LEGAL PROTECTION
OF HUMAN RIGHTS
PURSUANT TO RULE 61 OF THE RULES OF THE COURT

12 APRIL

TABLE OF CONTENTS

I.    INTRODUCTION    1
II.    INTEREST OF INTERIGHTS        1
III.    THE LEGAL ISSUE        2
IV.    DISCUSSION        3
A.    REFORMS IN THE DEFINITION OF RAPE    3
B.    LAWS WHICH DO NOT REQUIRE
PROOF OF USE OF PHYSICAL FORCE
BY THE ACCUSED TO ESTABLISH RAPE    7
1    Civil Law    7
2    Common Law    7
C.    LAWS WHICH DO NOT REQUIRE
PROOF OF PHYSICAL RESISTANCE BY THE COMPLAINANT
TOO ESTABLISH RAPE    8
1    Civil Law    8
2    Common Law            8
V.    CONCLUSION            10
VI.    APPENDIX: STATEMENTS OF EXPERTS        11
Australia ( Victoria): Statement by Sangeeta Chandrashekeran
Belgium : Statement by Liesbet Stevens
Canada : Statement by Prof. Hamish Stewart
Denmark : Statement by Morten Haagensen and Lene Ravn
Ireland: Statement by Prof. Ivana Bacik
South Africa : Statement by Helene Combrinck & Lillian Artz
United Kingdom : Statement by Prof. Susan S. M. Edwards
United States of America : Statement by Prof. Michelle J. Anderson

I.    INTRODUCTION

1. These written comments are submitted by INTERIGHTS, the International Centre for the Legal Protection of Human Rights, pursuant to leave granted by the President of the Chamber, Mr. CL Rozakis, in accordance with Rule 61 � 3 of the Rules of Court.[1] They address the question of whether laws and practices requiring proof of the use of physical force by the accused or physical resistance by the complainant to establish rape violate the state's obligations under international law to protect the rights to physical integrity, private life and an effective remedy, together with the right to non-discrimination on the ground of sex.

2. These comments are limited to the provision of relevant international and comparative law materials, focusing mainly on developments within certain countries within the European Union (Belgium, Denmark, France, Germany, Ireland, United Kingdom) and beyond (Australia, Canada, South Africa, United States of America). They also draw substantially upon several statements by experts which set out legal developments in particular national jurisdictions (see Appendix).

II. INTEREST OF INTERIGHTS

3. INTERIGHTS is an international human rights law centre. It advises on legal rights and remedies under international and comparative human rights law, and assists lawyers and non-governmental organisations in the preparation and presentation of cases before international, regional and domestic courts and tribunals. In particular, it focuses on increasing the legal protection of, inter alia, the right to liberty and security, together with the right to equality and non-discrimination, including gender equality, through litigation, litigation support, information dissemination and education. Jointly with other organisations, INTERIGHTS has submitted comments in several prior cases before this Court, including Lingens v Austria and Nikula v Finland.

4. Rape often arises not only in situations of violence and physical force, but also of fear or psychological oppression, resulting in the victim feeling both physically and psychologically overwhelmed. Moreover, the fear and shock of situations of sexual violence may leave the victim in a situation in which she is unable to express any immediate physical response. As the discussion of legal developments below demonstrates, substantive criminal laws and applicable rules of criminal procedure and evidence, increasingly recognise that neither physical force nor physical resistance is an element of the crime of rape, and investigating and prosecuting authorities should not infer consent on the part of a victim from what they conclude to be an apparent lack of physical resistance.

5. As recognised by this Court, the state's positive obligations to ensure the protection of the rights to physical integrity and to private life include the obligation to have in place an effective legal framework for the investigation and prosecution of rape, and to undertake prompt, adequate and impartial investigation and prosecution of rape.[2] It is submitted that a statement by this Court recognising that laws and practices that require proof of physical force or of physical resistance to establish rape are inconsistent with these obligations, would not only add to this Court's own growing jurisprudence regarding the rights to physical integrity and private life, but also provide significant guidance to courts and tribunals in many jurisdictions, nationally and regionally, which look to this Court�s precedent in construing constitutional protections and drafting legislation.

III. THE LEGAL ISSUE

6. This case concerns the termination by Bulgarian state authorities of criminal proceedings regarding allegations of rape of the Applicant, then a minor, on the ground of there being insufficient evidence of her having been compelled to have sex against her will. The Applicant, then aged 14 years and 10 months, was allegedly raped by two men. Following investigations which continued over a period of three years, the District Prosecutor issued a decree terminating the criminal proceedings. He found, inter alia, that it had not been established beyond reasonable doubt that there had been use of force or threats or that sexual intercourse had taken place without the Applicant's consent and despite her resistance. Subsequently, the Regional Prosecutor�s Office and then the Chief Public Prosecutor�s Office dismissed the Applicant's appeals against this decree. The Bulgarian Government, in its Memorial to this Court, noted that under Bulgarian law the offence of rape requires proof of sexual intercourse through the use of force or threats, and that in this case this was not proved due to lack of evidence of the Applicant's having physically resisted or struggled with the two alleged perpetrators and due to her prior acquaintance with them. As set forth in the Court's decision dated 5 December 2002 on the admissibility of the application, this case concerns claims that Bulgarian law and practice in rape cases in general, and the allegedly ineffective investigation in the Applicant's case in particular, resulted in violations of the Applicant's rights under Articles 3, 8, 13 and 14 of the Convention.

7. This case raises the question of whether proof of rape requires proof of physical force or physical resistance. It sets out developments in criminal law, at both the national and international law, which establish that proof of rape does not require either proof of force by the accused, or of resistance by the complainant, in accordance with an evolving recognition that the offence of rape implicates fundamental rights to physical integrity and sexual autonomy.

IV. DISCUSSION

8. These comments seek to provide for the Court an illustrative survey of international and national standards and the jurisprudence of a number of national courts which establish that proof of the offence of rape no longer requires proof of the use of physical force by the accused, or of physical resistance by the complainant. Indeed any such requirements would undermine and be contrary to international principles which require states to 'take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act' and specifically, to ensure that rape laws 'give adequate protection to all women, and respect their integrity and dignity'.[3]

9. These comments first set out how the definition of rape has been reformed both in international and national law, and then go onto review instances of national laws which do not require proof of use of force by the accused, or of physical resistance by the complainant to prove rape.

A. REFORMS IN THE DEFINITION OF RAPE

10. Traditionally, the definition of rape required, among others, proof of use of physical force by the accused and physical resistance by the complainant to prove that the defendant had overcome the complainant�s will by use of force. As the Supreme Court of Canada tellingly observed in the landmark case of R.v Ewanchuk, citing a leading academic: 'rape is most assuredly not the only crime in which consent is a defence; but it is the only crime that has required the victim to resist physically in order to establish non-consent.�[4]

11. Over the past two decades, the traditional definition of rape has undergone reform in both civil and common law jurisdictions, in order to take account of and respond to evolving understanding of the nature of the offence and the manner in which it is experienced by women and girls. As many studies have noted, the reality of rape as it is experienced in fact is that it may be committed through use of coercion or threats, as well as violence and force. Available evidence also overwhelmingly indicates that women, and more often minor girls, do not physically resist acts of rape, either because they are physically unable to do so through paralysing fear, or because they seek to protect themselves from an increase in the level of force being used against them.

12. The reforms to the definition of rape reflect a shift from what has been termed the �historical approach� to the �equality approach' to the question of consent. As noted by Professor Rebecca Cook, an authoritative commentator on equality rights:

�The equality approach starts by examining not whether the woman said �no�, but whether she said �yes�. Women do not walk around in a state of constant consent to sexual activity unless and until they say �no�, or offer resistance to anyone who targets them for sexual activity. The right to physical and sexual autonomy means that they have to affirmatively consent to sexual activity. To assume otherwise is a breach of their equality rights protected by the guarantees of equality and security of the person found in the national constitution and of the states' obligations under international treaties such as CEDAW.�[5]

13. In reforming the definition of rape, the courts and legislatures concerned have made clear that rape is as an offence affecting women's autonomy, and that the essential element of rape is the lack of consent of the complainant. A central concern underlying such reforms has therefore been to clarify that it is not necessary in proving non-consent to prove that the accused forcibly overcame the physical resistance of the complainant.

14. Despite divergent definitions of rape, an underlying feature of both international and national laws is that the essential element required is to prove the lack of consent to sexual intercourse by the complainant. The development of international standards and comparative approaches to this question can be seen from the definition of the elements of the crime of rape in International Criminal Law, which clearly demonstrate a rejection of the need for physical force or of physical resistance. Both the International Criminal Tribunal on Rwanda (ICTR)[6] and the International Criminal Tribunal on the Former Yugoslavia (ICTY)[7] have in a series of cases clearly articulated that not only force, but also coercion or threats of force would suffice to prove rape. Most recently, the ICTY has gone further to state while relevant, these three elements obscure the underlying feature unifying the offence of rape in various legal systems, namely the �basic principle of penalizing violations of sexual autonomy.�[8] The ICTY has also clarified that while �force or threat of force provides clear evidence of non-consent,� force �is not an element per se of rape.�[9] It has also explicitly found that there is basis for the �resistance� requirement in customary international law, and that such a requirement would be �wrong on the law and absurd on the facts.�[10] (Interestingly, in at least two cases, the ICTY has had occasion to consider national laws on rape, demonstrating the relevance of comparative legal developments to progressive interpretation and elaboration of international standards.[11]) In the most recent statement by the international community, the Statute of the ICC, it is made explicit that the requirement of any physical force element to establish rape is rejected, and that inferring consent from the absence of proof of the use of physical force by the accused is at odds with international standards on evidence in cases of sexual violence. [12]

15. With respect to national jurisdictions, a recent survey indicated that the majority of European countries have changed the definition of rape since 1989.[13] In a number of countries, rape is defined as sexual penetration of another by force, coercion, violence or threats, or otherwise without their consent. [14] In several others there is no specific offence of rape, but rather a �series of offences', of, for example 'sexual coercion� (Germany), in which penetration is regarded as not the defining but an aggravating factor resulting in an enhanced sentence. (In some non-EU countries, for example, Canada, rather than the prosecution being required to prove non-consent, it is for the accused to show that consent was given, either through words or conduct, by the victim).

16. While in all the countries concerned, the prosecution is required to prove non-consent as an essential element, the means for doing so differ. In common law countries, such as Australia, England and Ireland for example, consent is not defined in the law, and the jury must determine, based on jury directions given by the judge, whether the prosecution has proved non-consent. In civil law countries, the definition of rape in the criminal codes provides for a range of circumstances in which sexual intercourse is found to be committed through force or compulsion, or with the non-consent of the victim.

17. In none of the countries discussed does the law require the prosecution to prove physical force by the defendant, or physical resistance by the complainant, in order to establish rape. In practice however, in a number of countries, the law is interpreted by the police and prosecution as requiring some evidence of resistance. Further, cross-examination of the victim by the defence often focuses on whether she put up any resistance, and appears to be �based on the premise that it is more honourable to fight back against a sexual assault, rather than to retreat and submit in order to try and preserve life�. [15]

18. It may be noted that the impetus for further reform of rape laws within the European Union may be found in the recommendations of the Committee of Ministers to Member States to ensure that national laws should �penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance.�[16]

B. LAWS WHICH DO NOT REQUIRE PROOF OF USE OF PHYSICAL FORCE TO ESTABLISH RAPE

1. Civil Law

19. Following amendments to the Belgian Criminal Code in 1989, it is now sufficient to prove non-consent by establishing that the act of sexual penetration 'employed violence, duress or trickery, or was made possible by the victim's infirmity or physical or mental disability'.[17]

20. Similarly, in Denmark, rape may be established even in the absence of physical force, provided that it is possible to prove a threat of violence. Submission, rather than resistance, would be sufficient to establish lack of consent, for example if a complainant remained passive, because of being 'paralyzed by fear'.[18] In the absence of proof of physical force, threatening conduct[19] such as pulling out a knife or giving signals to other people to take action, or threats to third parties may also amount to 'coercion'.

2. Common Law

21. In many common law jurisdictions, laws now explicitly state that non-consensual sexual intercourse constitutes a criminal offence, even in the absence of proof of physical force by the accused. In Ireland, for example, �it is now fully accepted that the dominant consideration [in the crime of rape] is the absence of consent and not the presence of force.�[20] In the United States of America, legislation in thirty-seven states explicitly criminalises non-consensual sexual intercourse even without force extrinsic to that required to effectuate sexual intercourse.[21] In states where the laws do appear to require proof of extrinsic force, courts have interpreted such force as being evidenced by, for example, the use of psychological or mental coercion, or taking the complainant to a remote location, or creating a coercive environment.[22] Alternatively, some courts have found that once non-consent is established, it is not necessary to prove any force beyond that inherent to the fact of non-consensual penetration. In some jurisdictions, requiring proof of physical force by the accused would amount to an error of law, and would vitiate the prosecution itself.[23]

22. In several jurisdictions, instead of proving force, it would be sufficient to prove that fear of force, or of harm of any type, resulted in the submission of the complainant.[24] In at least one state in Australia (Victoria), the fear of harm could even include fear of non-physical harm, such as fear of loss of employment for refusal to submit to an employer's demand for sexual intercourse.[25] Similarly, in South African law, it is clearly established that threats of force would suffice.[26] South African courts have also noted that the nature of the power disparity between the defendant and the complainant may be a factor which would cause her to be afraid of assault and to submit to the intercourse. [27]

C. laws which do not Require Proof of Physical Resistance by the Complainant to Establish Rape

1. Civil Law

23. Civil law jurisdictions have also recognised that to prove non-consent it is not necessary to establish physical resistance. While in Belgian law, physical resistance by a victim would assist in establishing the lack of consent, it is accepted that factors such as the age of a victim would influence decisions as to the capacity of a victim to resist.[28]

24. In German law, there is no requirement of proving force or resistance, though some element of 'coercion' must be demonstrated. [29] The �defencelessness� of a victim can give rise to the offence of sexual coercion; a complete exclusion of the capacity to resist is not, however, required to establish defencelessness.

2. Common Law

25. Lack of consent to sexual conduct is the essential element in establishing the crime of rape or sexual assault and it is in this context that the existence or absence of physical resistance by the complainant has been considered in a number of common law jurisdictions.

26. To require evidence of resistance would amount to accepting the notion of 'implied consent', with a lack of resistance being held to infer consent, even though the two do not always coincide. In R. v Ewanchuck,[30] the Supreme Court of Canada trenchantly criticised the whole notion of 'implied consent', and rejected a lower court's observation that the complainant should have physically resisted her attacker, on the grounds that it was based on discriminatory myths about rape and, as such, was clearly inappropriate and contrary to parliamentary intent.[31] The Court established that proof of consent as the actus reus of rape is purely subjective, and the prosecution therefore only needs to prove that the complainant was clear, in her own mind, that she was unwilling for sexual touching to occur.[32]

27. The abandonment of the requirement to show physical resistance is closely connected to a greater awareness of the likely responses of women when subjected to rape. Empirical research on responses to rape has been used in the USA, in the New Jersey Courts for example, to discredit the �assumption that resistance to the utmost or to the best of a woman�s ability was the most reasonable or rational response to rape�.[33] The highest court in the State of New York has also concluded that �in many instances�no resistance could reasonably be expected from a person who genuinely refuses to participate in sexual activities.�[34] Indeed, the developments in the law of the U.S.A. with respect to physical resistance are notable; while historically a number of states in the U.S.A required a complainant to have displayed �utmost resistance�, this is no longer the case.[35

28. In a number of jurisdictions, �submission� on the one hand and is clearly differentiated from free consent to an act on the other. In South Africa, for example, the courts have held that passivity, or merely �abandonment of outward resistance� is not proof of consent.[36] The Australian concept of consent as �free agreement� is particularly compelling.[37] In Ireland, this recognition that complainants may abandon physical efforts of resistance while not consenting is enshrined in legislation, with Section 9 of the Criminal Law (Rape) (Amendment) Act 1990 expressly providing that a failure to offer resistance does not constitute consent.[38]

29. In jurisdictions where trials for rape are heard before a jury, the emphasis on free agreement is reinforced by a requirement for the judge to give specific jury directions regarding the meaning of consent. In England, the Court of Appeal in R v. Olugboja, clarified that the correct question a court should ask is simply �at the time of sexual intercourse, did the woman consent to it?�[39] In the State of Victoria (Australia), the jury directions require a positive act to demonstrate consent. [40]

30. While evidence of non-consent must be established, the law of many democratic jurisdictions has established that no vocal or physical resistance needs to be demonstrated by the complainant in order to found a conviction for rape.[41]

V. CONCLUSION

31. The survey of international and national laws and jurisprudence set out above demonstrates that in many jurisdictions, proof of physical force by the accused or of physical resistance by the complainant is no longer required in order to establish the offence of rape. In many instances, legal reforms to this end have been predicated on a recognition that such a requirement would be gender discriminatory and would violate the rights of women and girls to obtain equal protection to law, to physical integrity and to private life. In short, under most of the laws reviewed here, it is unlikely that investigation or prosecution of allegations of rape would not proceed only on the grounds of lack of proof of physical force or of physical resistance by the complainant.

Dated: 12 April 2003     ___________________________________

Sara Hossain
Legal Officer, INTERIGHTS
33, Islington High Street, London N1 9LH
Fax:44-207 278 3230
Email: shossain@interights.org

APPENDIX TO WRITTEN COMMENTS

STATEMENTS OF LAW

by:

Sangeeta Chandrashekeran, Australia (Victoria)
Liesbet Stevens, Belgium
Prof. Hamish Stewart, Canada
Morten Haagensen and Lene Ravn, Denmark
Prof. Ivana Bacik, Ireland
Helene Combrinck and Lillian Artz, South Africa
Prof. Susan S. M. Edwards, United Kingdom
Prof. Michelle J. Anderson, United States of America

APPENDIX: STATEMENTS OF LAW

1.  Australia (Victoria):    Statement by Sangeeta Chandrashekeran 2.  Belgium:    Statement by Liesbet Stevens 3.  Canada:    Statement by Prof. Hamish Stewart 4.  Denmark:    Statement by Morten Haagensen and Lene Ravn 5.  Ireland:    Statement by Prof. Ivana Bacik 6.  South Africa:     Statement by Helene Combrinck & Lillian Artz 7.  United Kingdom:    Statement by Prof. Susan S. M. Edwards 8.  United States of America:    Statement by Prof. Michelle J. Anderson 9.  Copy of Letter Requesting Expert Statements

[1] Pursuant to a letter dated 4 March 1993 issued by the Deputy Section Registrar, Soren Nielsen, and a letter dated 12 March 2003 issued on behalf the Registrar.

[2] Aydin v Turkey, Judgment dated 25 September 1997; X and Y v Netherlands, Judgment of 26 March 1985.

[3] Committee on the Elimination of All Forms of Violence against Women, General Recommendation 19 on Violence against Women, (Eleventh Session 1992) at para 24 (a) and (b).

[4] 2000 3 LRC 88 (Canadian SC), citing Susan Estrich 'Rape' (1986) Yale LJ 1087 at 1090.

[5] Professor Rebecca Cook, Professor Bernard Dickens and Paul Kaufman, 'Report to the UN Special Rapporteur on Violence against Women -- Analysis of Canadian Law', mimeo.

[6] See Prosecutor v. Jean-Paul Akayesu (Case No. ICTR-96-4-T), Judgment 2 September 1998, (rape defined as ' physical invasion of a sexual nature, committed on a person under circumstances which are coercive', followed in Prosecutor v. Alfred Musema ICTR-96-13 (the essence of the offence of rape lies in �the aggression that is expressed in a sexual manner under conditions of coercion).�

[7] See Prosecutor v Furundzija (Case No. IT-95-17/1-T), Judgment 10 December 1998, at paras 174-185 (drawing from Akayesu and national penal codes to hold that the elements of rape common to most legal systems include ��coercion or force or threat of force against the victim or a third person'), and Trial Chamber and Appellate judgments; Kunarac, Kovac and Vukovic IT-96-23 and IT-96-23/1, dated 22 February 2001 and 12 June 2002, respectively.

[8] Kunarac, Trial Chamber, at para 440.

[9] Kunarac, Appeals Chamber, at para 129.

[10] Kunarac, Appeals Chamber, at para 128.

[11] See Furundzija and Kunarac, id; in the latter, the ICTY noted that in common law systems, where �the absence of the victim�s free and genuine consent to sexual penetration � is the defining characteristic of rape (at para 435),� it is clear that neither force nor threat of force need to be proven, and it is clear that the consent must be genuine and voluntarily given. In examining civil law jurisdictions, it referred to the negativing of consent by factors specified in particular criminal codes (at para 456).

[12] See the �Principles of Evidence in Cases of Sexual Violence� set out at Rule 70 of the Draft Rules of Procedure and Evidence of the International Criminal Court: follows:�consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim�s ability to give voluntary and genuine consent. �consent cannot be inferred by reason of the silence of, or lack resistance by, a victim to the alleged sexual violence�"

[13] Bacik, Maunsell and Gogan, 'The Legal Process and Victims of Rape: A comparative analysis of the laws and legal procedures relating to rape, and their impact upon victims of rape, in the fifteen member states of the European Union�, Dublin Rape Crisis Centre and the School of Law, Trinity College, Dublin September 1998.

[14] In Belgium, the offence of rape is defined as �an act of sexual penetration�committed in respect a person who has not given consent .� (Article 375, Belgian Criminal Code). In France, rape is defined as sexual penetration committed under circumstances which are coercive, under duress, threat or by surprise (Article 222-23, French Criminal Code). In Denmark, rape is defined as enforcing 'sexual intercourse by violence or under threat of violence' or 'placing of a person in such a position that the person is unable to resist the act' which is considered to be equivalent to violence (Section 216, Criminal Code). In the United Kingdom, rape is proved when 'a man has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and at the time he knows that the person does not consent to the intercourse or is reckless as to whether the person consents to it.� (Criminal Justice and Public Order Act 1994, s 142).

[15] Bacik, Maunsell and Gogan, supra at p. 47.

[16] Recommendation Rec (2002) 5 of the Committee of Ministers to Member States on the protection of women against violence adopted on 30 April 2002 and Explanatory Memorandum, at paragraph 35 of the Appendix to the Recommendation. These recommendations emphasise that 'that lack of physical resistance does not necessarily signify consent; fear or threat can subdue any inclination to resist, without there being any question of valid consent.�(para 58).

[17] Article 375, Belgian Criminal Code.

[18] Denmark Report, paras. 1.5 and 1.6.

[19] By an amendment in 1981, the requirement of �giving rise to fear for life, health or the well-being of herself or her closest relatives� was changed into �threat of violence�. At the same time the amendment made the provision gender neutral.

[20] Thomas O'Malley, Sexual Offences: Law Policy and Punishment, (Dublin: Round Hall Sweet & Maxwell, 1996) at p.36.

[21] U.S.A Report, p.2, para 3.1.

[22] U.S.A. Report, fn.12 and 13.

[23] Canada Report, p.3.

[24] Australia Report, para 3.3.

[25] Australia Report, para 4.2. This is premised on an understanding of an individual's lack of alternatives in such situations.

[26] South Africa Report, fn.17.

[27] South Africa Report, p.6.

[28] Belgium Report, para 2.2.

[29] �Sexual coercion� is the basic offence which when aggravated constitutes rape under German law. Section 177 � 1 no. 3, German Criminal Code.

[30] R v. Ewanchuk [2000] 3 LRC 88 (Canadian SC).

[31] Ewanchuk, id, at 116.

[32] Ewanchuk, id. at para 27.

[33] In the Interest of M.T.S. 609A.2d 1266, 1277 (N.J.1992), referred at U.S.A. Report, para 5.1.

[34] People v. Dorsey 429 N.Y.S.2d 828,830 (Supp. Ct. 1980), referred at U.S.A. Report, para 4.2.

[35] Only two states continue to require a sexual assault victim to display �earnest� resistance and these minority jurisdictions do not require a victim to resist if there is a reasonable belief that resistance would be futile or damaging. U.S.A. Report, para 4.1.

[36] South Africa Report, paras 3.1 to 3.5.

[37] Australia Report, paras 3.1 and 3.2.

[38] S9 of the Criminal Law Rape (Amendment) Act 1990 (Ireland) expressly provides: "It is hereby declared that in relation to an offence that consists or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to that act."

[39] R v. Olugboja [1982] Q.B. 320 at 331. See also Barry Hill and Karen Fletcher-Rogers, Sexually Related Offences, (London: Sweet and Maxwell, 1997) at 136.

[40] Australia Report, para 5.3. These state that�� the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement; and �a person is not to be regarded as having freely agreed to a sexual act just because she did not protest or physically resist, or sustain physical injury....�

[41] R. v. Malone, Id., at 456, 457. Note that the Court does go on to state that �no doubt in order to obtain a conviction there will have to be some evidence of lack of consent to go before the jury. But what that evidence will be will depend on the particular circumstances of the case that the jury is trying.� It might even consist of the complainant's simple assertion that she did not consent. Id.