The Independent Commission for Human Rights The mental element in this kind of crime is exemplified in the intent of the offender, which concerns whether he has the will to commit such an act or not. The mental element is not different from the criminal intent within the crime of adultery. The state of mind and will of the man and the woman involved in the relationship stated in Article (285) put them in a situation where they both seem equally agreed to commit the act, and so the punishment stated in Article (76) of the Penal Code, relates to complicity, would be imposed. It states that “if several persons together commit a felony or a misdemeanor of multiple acts and each one of them committed one act or more of that crime intentionally, they shall all be considered accomplices and each one of them shall be punished according to the law, even if he committed that crime independently”. This entails that the offender should be aware of the element of relationship stated in Article (285) and be willing to commit the crime. If the man does not know of the relationship stated in the aforesaid article, the act of incest shall be nullified because fault and ignorance dismiss a criminal act. If the defendant does not know that the woman he committed intercourse with falls within one of the categories stated in the aforesaid articles (mistake of law), he would be able to use that in the defense process to nullify the criminal intent, something which the court must prove according to the English justice system. If a defendant believed his stepdaughter to be the daughter of one of two adulterers, then criminal intent48 would be nullified. What is meant by “consent of the victim to the crime” is consent before the occurrence of the act, and not after it. The legal definition of the consent of the victim to the crime of incest entails approval, not coercion. This is what distinguishes the crime of incest from rape; it occurs upon the consent of both parties, but rape occurs without consent of the victim. Legal elements of victim consent a. Will: this is the core element of the victim’s consent; contrary to that, the civil law defines consent as the agreement between two wills or more to establish obligatory relationships between contractors. The penal code views consent of the victim as permission willingly given by the victim and an expression of his or her will, reflecting acceptance of the act and the expected consequences of that act. Expression of this will is sufficient to validate the consequences of consent, even if the victim is not aware of them, and provided that this will is expressed freely while in a coherent state of mind. A mad person or a person under the influence of alcohol or drugs cannot be considered to have will and so cannot have consent. The will of the victim ensures consent even if it is not openly announced. Consent is a system, the core of which is the will to accept the act, and if it appears that will is not present or not perceived in a positive and clear way, the main element of consent would be nullified or consent as whole would be nullified. In order for the will of the victim to take effect, it must be announced, in a free and 48 al-Saed 1993, Crimes against ethics and family, comparative analytical study p.266. documented for Carmichael 1940, IK.B.630, 1940 (2 ALLE.R.165). 34