74“Consent”

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

In law rape charges aren't examined through whether the woman gave consent (although she obviously has to claim not for there to be a court case) or not they look at the case a different way. Consent has to be able to be reasonably assumed in a situation for it not to constitute rape (and there are certain circumstances like being spiked or threatened etc where it can never be assumed) what that means is essentially that consent is contextual and not set in stone so whether it was reasonable for you to assume consent or not in that situation if you were charged with rape in is up to the courts to decide.

It is entirely possible where to have a situation where say a woman doesn't consent, in her internal monologue it is not consensual sex but she freezes up and doesn't indicate it and where the man, through say cues from the woman, can actually reasonably assume consent. Not merely thr

There is a good episode of Rumpole of the Bailey called Rumpole and the Honourable Member that deals with (an admittedly much older and out of date version of) this law and the case ultimately comes down to whether the MP accused of rape believed she consented or not that is really interesting on the matter.

If a girl comes up to you, get's your chap out and straddles you, you are probably going to be pretty certain you can assume consent (assuming you haven't spiked her drink etc). If she is phyiscally unresponsive or a bit resistant then the burden of proof might be upped by the court and they might consider anything less than express verbal consent as not enough to be able to reasonably assume consent.

In rape cases one of the most important things that are looked at is what the defendant did to ascertain consent was given.