Many Sexual offences like rape or outrage of modesty requires proof of a lack of Consent. The issue of consent is complicated and requires further explaining.
Consent is different from submission. A woman may not resist sexual intercourse or touching, but this does not mean that she has consented. To be clear, a woman also does not consent if she submits to sexual intercourse when she is acting out of fear of death, hurt, injury or wrongful restraint.
In cases of rape, even if the prosecution establishes that the accused sexually penetrated the victim without her consent, the accused may argue that he believed that she was consenting. For example, she may have consented to the touching her breasts but the accused had gone further and penetrated her vagina with his finger. However, the accused has to prove that he made the mistake in good faith. Thus, he has to prove that he had paid due care and attention before forming his mistaken belief, and that his mistake was reasonable.
However, in cases of outrage of modesty, the prosecution has to prove that the accused intended to outrage modesty or knew that he was likely to do so. Thus, even if he unreasonably believes that the accused was consenting, he may not be guilty of the offence. This is also the case for attempted rape cases. The fault element for an attempted crime is an intention to commit the offence. Therefore, the prosecution must prove that the accused intends to commit sexual intercourse without consent. So even if the accused had an unreasonable belief that the victim was consenting, he would be intending to have sexual intercourse with consent and thus, would not be guilty of the offence of attempted rape.
If you are unclear of your legal position, you may do well to seek a criminal lawyer for legal advice. This article only intends to provide you with basic information, and is not intended to be a substitute for the professional services of a criminal law firm. Gloria James Civetta is a criminal law firm in Singapore who has had much experience with sexual offences involving the lack of consent.
N.B. References were made to Yeo, Morgan and Chan, Criminal Law in Malaysia and Singapore, Second Edition.