7.3 Sexual Offences Lecture – Hands on Examples
This question is designed to test your knowledge and understanding of sexual offences. Whilst this appears to be a very large area and whilst certain elements of it are quite complex, it is important to remember that many of the key elements are relevant to all of the offences. The result is that although there are numerous offences to learn, large parts of each offence are interchangeable.
- Peter is extremely angry because he has just discovered that his wife, Julie, has been having an affair with his best friend Brian. In order to try to calm down a little, Peter decides to go to the pub. Whilst at the pub, he drinks 12 pints of strong lager and, as a result, becomes extremely drunk. In his drunken state, Peter comes to the conclusion that he is sure that Julie has made a mistake and that all it will take to win her back is for him to show her how much he loves her. In order to show Julie this Peter decides to go home to make love to her.
When he gets home, his wife is asleep. Peter decides to wake Julie up and tell her how he feels. Julie wakes to see how upset Peter is and decides, because she feels sorry for him, to allow him to make love to her for one last time (she intends to move in with Brian the next morning). Peter undresses, climbs into bed and penetrates Julie’s vagina with his penis. After a few minutes, Julie suddenly decides that what she is doing is wrong and says to Peter ‘Stop this now, I do not want you to carry on, get your penis out of me’.
Discuss Peter’s liability for rape if:
- He immediately withdraws his penis.
- He continues to have sexual intercourse with Julie because he believes that if he continues she will see how much he loves her.
- The same situation exists as is set out above except that when Peter gets home he undresses and gets into bed with Julie who is dozing. Peter penetrates Julie’s vagina with his penis. When Julie stirs she says ‘What’s going on’. Peter says, ‘Don’t worry it’s me, Brian. Peter is at the pub and won’t be home for ages’.
Discuss Peter’s liability in this circumstance.
- Peter and Julie’s son, Christopher, is 17-years-old and has been seeing his girlfriend Amanda for 2 months. Amanda is 16 and in the 6th form at school. One evening after a date, Amanda invited Christopher to her house because her parents are out. Whilst at Amada’s house Christopher and her kiss and, because he thinks that Amanda will like it, Christopher pushes his hand between Amanda’s legs and touches her vagina through her jeans. Amanda immediately jumps up and throws Christopher out of the house.
Christopher is arrested the next morning. Consider his liability for sexual assault. How would your answer differ if Amanda had lied about her age and was only 15-years-old?
- Situation 3 did not occur as described and Amanda was happy for Christopher to touch her as he did, although they did not go further than this. The following week Christopher tells Amanda that he is going away. Whilst he is away, Christopher s Amanda and suggests that she do something to remind him of why he likes her so much. He suggests that Amanda carries out a striptease over a webcam, so that he can watch it from his location. Amanda agrees, but what she does not know, is that Christopher has invited several of his friends around to watch ‘the show’. Amanda, therefore, does a striptease in front of Christopher and his friends.
Consider Christopher’s liability for any sexual offences.
- The issue in this context is whether Peter rapes Julie. The actus reus of the offence requires penetration of the vagina with a penis – this is clearly satisfied. There can also be no consent. This is clearly not an issue at the start of the sexual activity because Julie expressly allows Peter to penetrate her. The issue arises when Peter is told to stop. Penetration is an ongoing act and therefore, as soon as the consent is withdrawn, the penetration must end. In the first scenario, this occurs and Peter will not be liable for rape. He does not satisfy the actus reus because he only penetrates with consent. When the consent ends, so does the penetration.
The alternative scenario is more problematic because Peter does not remove his penis when told to stop. This means that he satisfies the actus reus of the offence. There is penetration and Julie does not consent to it. The first mens rea element is satisfied in that the penetration is intentional. The second element falls to whether it was reasonable for Peter to believe that Julie consented. Whilst Julie’s actions are slightly conflicting, her words are unambiguous. The fact that Peter genuinely believes that Julie will want him to continue is irrelevant because the question is an objective one. Additionally, the fact that Peter is very drunk is not relevant to what a reasonable person in his circumstances would believe. It seems, therefore, that Peter will not be found to have a reasonable belief in consent.
- When Peter penetrates Julie, she is asleep. This gives rise to the presumption that she does not consent (s 75(2)(a)). The question is whether Peter will be able to rebut this presumption. On the facts this seems unlikely. In order to do so, Peter would need to be able to show that Julie wanted him to penetrate her while she slept. This consideration becomes unnecessary once Peter pretends to be Brian because here he is inducing Julie to consent by impersonating somebody she knows personally (s 76(2)(b)). This presumption of no consent cannot be rebutted and Peter will be liable for raping Julie.
- The actus reus elements of sexual assault (s 3) are satisfied here. It appears that the touching is clearly sexual and even if it is not it certainly may be, with the circumstances making it so. The issue once again is one of consent. It seems that Amanda does not consent to the touching, so the issue is whether Christopher’s belief that she did was a reasonable one. This is clearly a jury question, but it seems possible, given the facts, that somebody in Christopher’s position may have reasonably believed that Amanda was consenting.
The second element in this question touches on the offences against children. These facts fall under section 9 SOA 2003, with the real issue being whether Christopher will be able to raise the defence that he reasonably believed that Amanda was at least 16. Again this is a question of fact, but it seems likely, given how close to 16 Amanda is and the fact that she lied to Christopher, that he might be able to do so.
- This question refers to s 4 SOA 2003 – causing a person to engage in sexual activity without consent. Christopher intentionally causes Amanda to engage in the activity and the activity is clearly sexual. The issue falls to consent. The problem here is that whilst Amanda agreed to the activity, she did not know its true purpose. The facts are similar to R v Devonald and therefore, it seems unlikely that Amanda will not be considered to have consented. Section 76 SOA 2003 applies to this offence and therefore, because Christopher intentionally deceived Amanda as to the purpose of the act, section 76(2)(a) creates conclusive presumption in this respect. In any event, even if this presumption does not apply, it seems extremely unlikely that Christopher would be considered to reasonably believe that Amanda consented.
You will notice from these questions that they mostly focus on consent in various circumstances. This is because this is the largest issue for sexual offence, it being relatively simple to identify the other elements of an offence from the facts. It is important, therefore, that you fully understand the elements of consent as well as learning the other elements of each offence.
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