Rape
A man is guilty of the offence of rape if
(a) he intentionally penetrates a woman's vagina, anus or mouth with his penis. (There is no need for the prosecution to prove that he actually ejaculated inside her vagina. The penetration does not have to be deep. Any degree of penetration, however slight, will do.);
(b) at the time when he penetrated her, she did not consent to the penetration; and
(c) at that time he did not reasonably believe that she was consenting.
The Defendant agrees that he penetrated C**'s vagina when having sexual intercourse with her, but he says she consented and that he believed that she consented.
So, the two issues for you to decide are whether or not C** consented to sexual intercourse, and, if she did not, whether or not at the time the defendant reasonably believed that she consented.
consent
"consent" means "agree".
A woman consents to sexual intercourse only if she agrees by choice and has the freedom and capacity to make that choice. Mere submission by C** to something that she did not want to happen does not amount to consent.
In deciding whether C** really consented, or whether she merely submitted to something that she did not want, you should apply your combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts.
The law does not require a complainant to have resisted physically, nor is it necessary to show that a woman's submission was induced by force or fear - although in this case the prosecution evidence is that C** did physically resist and that D** overpowered her by the use of both force and threats.
at the time the defendant did not reasonably believe that she consented
This raises two issues. Did the defendant, actually, honestly believe or might he honestly have believed that C** consented? Secondly, would a reasonable man, knowing what the defendant knew, have believed that she consented?
The prosecution must satisfy you that the defendant did not believe that C** was consenting, or that any belief on his part that she was consenting was not a reasonable belief.
What matters here is the defendant's belief at the time that he had sexual intercourse, when he put his penis inside C**. A man may hold a reasonable belief that a woman is going to consent to sex beforehand, but if she then makes it clear that she does not want to have sexual intercourse, and he knows that she is not consenting, but continues to have sex regardless, he is guilty of rape.
A man who does not think about whether or not a woman is consenting - either because he does not care or his mind is affected by drugs - does not honestly believe that she is consenting.
If you decide that the defendant did believe or may have believed that C** was consenting, and you are considering whether that belief was reasonable, you should take into account all the circumstances including any steps which the defendant took to ascertain whether or not she consented.
So, the key questions for you to answer separately in relation to each count, having regard to all the evidence and the directions which I give you are these
At the time when D** placed his penis inside C**, did she consent, or might she have consented to sexual intercourse?
At the time when he placed his penis inside her, did he reasonably believe or might he reasonably have believed that she consented?
If you are sure that the answers to both questions are "no", the defendant is guilty of the count which you are considering. If the answer to either question may be "yes", he is not guilty.