a) X had obtained consent from Y by saying that intercourse is a breathing exercise. Further, he also imitated Ys husband.

(Conclusive Presumption) b) X had obtained consent from Y while she was asleep or by intimidating her or by imprisoning her or by mixing something into her foods. (Evidential Presumption). For having sexual intercourse with Y, X can be charged for Rape under section 1(1) of SOA 2003. AR. MR intentional penetration, consent: X can argue that Y had given consent since she had chosen to have intercourse with X by exercising her free will (section 74). Then Y can argue that the consent had been vitiated due to the application of conclusive presumption (section 76(2) (a) and (b)). Sexual intercourse can never be a breathing exercise and saying so would be a deceit as to the nature of the act which would vitiate the consent altogether (Flattery). Further, impersonating Ys husband was clearly a deception as to identity and as such the consent had also been vitiated (Elbekkey; Richardson). Y can also argue that consent had been vitiated due to evidential presumptions (Section 75(2)). When X intimidated her/ had intercourse with her when she was asleep/ or imprisoned her or made her involuntarily intoxicated then it is apparent that she did not have either the required capacity to give consent or did not exercise her free will. Therefore, the consent had been vitiated. However, if X can bring contrary evidence to rebut the vitiation of consent then consent would be restored. Rape: Intentional penetration into vagina, anus or mouth with penis without consent. (Can be committed upon male or female but can be committed only by male). Assault by Penetration: Intentional penetration into vagina or anus with anything (any part of your body or anything) without consent. X has pushed a pen into the vagina of Y. For pushing a pen into the vagina of Y, X can be charged for assault by penetration (section 2 of SOA 2003). Here, since X used one of the orifices required for this offence, namely vagina and used a pen which is an object sufficient for the purpose of penetration, therefore, X be taken to have committed the Actus Reus of this offence. With regard to mens rea, it is apparent that the penetration was intentional. However, with regard to consent (above discussion will apply).