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I. Absence of consent

The prosecution must prove beyond reasonable doubt that there was no consent. Absence of consent does not mean there must have been resistance from the victim. The victim might have been unconscious and so could not consent to sexual intercourse. Consent must be distinguished from submission. A woman threatened with a knife might not resist sexual intercourse out of fear. She has not, in common sense, willingly and freely consented to sexual intercourse.

 

Consent is absent where sexual intercourse is obtained by fraud or deception as to the nature of the act. For example, if a man deceives a girl that the act of intercourse is part of the necessary medical examination, there is no consent. However, if the deception relates not to the nature of the act of intercourse but to the objectives or reasons, consent may not be vitiated. For example, in a case in the Court of First Instance (HKSAR v Chow Kam-wah), the defendant procured sexual intercourse with a superstitious female victim by falsely representing that by having sexual intercourse with him the ghost following the victim would be exorcised. He was charged and convicted not of rape but of another offence of procuring a woman to do an unlawful sexual act by false pretences contrary to section 120(1) of the Crimes Ordinance.

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