Regina v Malone: CACD 1 May 1998

The defendant appealed his conviction for rape, arguing that the girl, though drunk, had consented.
Held: The Court approved the judge’s direction as follows: ‘She does not claim to have physically resisted nor to have verbally protested. She says the drink has disabled her from doing either; she has told you she did not consent; you must be sure that the act of sexual intercourse occurred without (her) consent. Submitting to an act of sexual intercourse, because through drink she was unable physically to resist though she wished to, is not consent. If she submits to intercourse because of the drink she cannot physically resist, that, of course, is not consent. No right thinking person would say that in those circumstances she was genuinely consenting to what occurred. What occurred . . not wishing to have intercourse but being physically unable to do anything about it would plainly, as a matter of common sense be against her will. It would be without her consent’.
Roch LJ, Sachs, Collins JJ
[1998] EWCA Crim 1462, [1998] 2 CAR 447, [1998] Crim LR 834, 154151
Bailii
England and Wales
Citing:
CitedOlugboja, Regina v CACD 17-Jun-1981
The actus reus of the offence of rape was an act of sexual intercourse to which the complainant did not consent at the time it occurred. . .

Cited by:
CitedGallagher, Regina v CACD 26-Mar-2007
The defendant appealed his conviction for rape, saying that other acquittals were inconsistent.
Held: They were not. Leave refused. . .
CitedRegina v Robinson CACD 23-Mar-2011
Earlier Acquittal not for mention on retrial
The defendant appealed against several convictions for serious ‘historic’ sex abuse. He said that there was insufficient evidence before the court to decide that the complainant had been under 14 at the time, and that any consent was vitiated. He . .

These lists may be incomplete.
Updated: 27 March 2021; Ref: scu.154336