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7.2 Sexual Offences Lecture

Introduction

Since almost all sexual offences are now contained within the provisions of the Sexual Offences Act 2003 (SOA 2003), many of the key terms are interchangeable between the various offences.

Rape

The definition of rape is set out in section 1, which provides:

  1. A person (A) commits and offence if –
  1. he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
  2. B does not consent to the penetration, and
  3. A does not reasonably believe that B consents
  1. Whether a belief is reasonable is to be determined having regard to all the circumstances, including and steps A has taken to ascertain whether B consents.
  2. Sections 75 and 76 apply to an offence under this section.

Sections 75 and 76 address certain presumptions as to consent and will be considered below.

The offence can be broken down into four elements:

  • Penetration with the defendant’s penis of the complainant’s vagina, anus or mouth;
  • The complainant did not consent;
  • The penetration was intentional;
  • The defendant did not reasonably believe that complainant consented.

The first two elements contain the actus reus of the offence, the second two the mens rea.

Actus Reus

Penetration

The first part of the actus reus of rape makes it clear that it is an offence that can only be committed by a man. Section 79(3) provides that parts of the body that are surgically constructed fall with the remit of the Act. The limitation on penetration with a penis means that a woman can never be guilty of rape.

The term penetration does not simply apply to the initial penetration, but constitutes a continuing act from entry to withdrawal (s 79(2)).

Absence of Consent

Firstly, consent forms part of the actus reus and the mens rea of the offence, and therefore it is important to distinguish between the two elements. Secondly, the notion of what constitutes consent is largely a jury question.

Section 74 provides that:

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

A complainant may or may not consent without any extrinsic demonstration of their frame of mind.

Case in focus: R v Kirk [2008] EWCA Crim 434

The issue of consent is further complicated by the fact that it can cover a range of reactions ranging from reluctant agreement to an express desire for the penetration to occur (R v Watson [2015] EWCA Crim 559).

The second element contained within the definition of consent relates to the complainant’s capacity to give consent (R v Howard(1965) 50 Cr App R 56).

In R v Cooper [2009] 1 WLR 1786 it was held that the question that must be asked is firstly, whether a complainant is able to understand the information relevant to the decision that they must make and secondly, whether they are able to weigh that information to be able to make a choice.

The second situation where capacity may be a specific issue relates to where a complainant is voluntarily intoxicated (R v Coates [2008] 1 Cr App R 52).

Case in focus: R v Hysa [2007] EWCA Crim 2056

Until relatively recently a woman could not refuse to have sexual intercourse with her husband. This position was changed in R v R [1992] 1 AC 599.

Mens Rea

Intention to Penetrate

For these purposes, all that is required is that the act of penetration is a deliberate or voluntary one (R v Heard [2008] QB 43).

No Reasonable Belief in Consent

This is not an entirely objective test, in that section 1(2) provides that regard should be had to all of the circumstances.

Particular personality traits or a particular mental disorder might be relevant to whether a defendant can be considered to have a reasonable belief in consent (R v Braham [2013] EWCA Crim 3).

Self-induced intoxication cannot give rise to a reasonable belief in consent (R v Grewal [2010] EWCA Crim 2448).

Section 1(2) does not require a defendant to take positive steps in an attempt to ascertain whether a complainant is, in fact, consenting.

Presumptions as to Consent

SOA 2003 creates two distinct types of presumptions as to whether the complainant consented to the penetration.

Evidential Presumptions

These presumptions create a degree of difficulty in that where one arises, a defendant must produce sufficient evidence to show that the presumption is rebuttable (s 75(1)). However, it is not necessarily sufficient for a defendant to assert that they believed that, despite the section 75 presumption, the complainant consented (R v Ciccarelli [2012] 1 CR App R 190).

The application of the section is fourfold:

  • If a section 75 presumption arises and the defendant cannot adduce evidence to rebut it, consent will not occur or they will not have a reasonable belief in consent.
  • If they are able to adduce evidence, the question as to whether the evidence is sufficient to rebut is one for the jury.
  • If the jury consider the evidence sufficient to rebut, the prosecution must produce evidence that demonstrates that the complainant did not consent.
  • In this circumstance, the ordinary approach as to the defendant’s reasonable belief applies.

There are six evidential presumptions.

  1. Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him. It is important to note that the use or threat of violence need not come from the defendant. It is violence directed at the complainant, whatever its origin that is relevant.
  2. Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person.
  3. The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act.
  4. The complainant was asleep or otherwise unconscious at the time of the relevant act. This section reflects that view set out above that an unconscious person cannot consent.
  5. Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented.
  6. Any person administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. The important point in the context of this presumption is that the complainant’s condition at the time that the relevant act occurred is irrelevant to the operation of the presumption. All that is required is that the overpowering drug is administered, it does not matter whether the complainant was actually overpowered.

The ability for these presumptions to be rebutted is limited.

Conclusive Presumptions

There are two conclusive presumptions set out within section 76(2). The first of these provides that a complainant will not be considered to have consented if the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (s 76(2)(a)).

This presumption will arise where a defendant has, for example, informed a complainant that they are going to perform a medical procedure on them where in reality the defendant simply intends to have sexual intercourse, with the result that the complainant consents to the penetration (R v Flattery(1877) 2 QB 410).

Cases in focus: R v Jheeta [2007] 2 Cr App R 477 and R v Devonald [2008] EWCA Crim 527

The second conclusive presumption arises where the defendant induces the complainant to consent to the relevant act by impersonating a person known personally to the complainant (s 76(2)(b)(R v Elbekkay [1995] Crim LR 163).

Non-disclosure of sexually transmitted diseases

In R v B [2007] 1 WLR 1567, it was made clear that non-disclosure of a sexually transmitted disease did not activate section 76(2)(a). It was also held in R v Dica [2004] QB 1257 that non-disclosure would not vitiate consent under section 74.

Complainant’s Mistake

The position in respect of whether a complainant consents with a mistaken belief as to the nature or quality of the act is linked closely to both section 76 and the general ability to make an informed choice (R v Tabussum [2000] 2 Cr App R 328)

Assault by Penetration

Section 2 provides:

  1. A person(A) commits an offence if –
  1. he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
  2. the penetration is sexual,
  3. B does not consent to the penetration, and
  4. A does not reasonably believe that B consents.

The mens rea of this offence is identical to that discussed above in relation to rape. The actus reus differs in two respects. The first difference is that penetration can be with any part of the defendant’s body or anything else.

The second actus reus element requires the penetration to be sexual.

Section 78 provides:

For the purpose of this Part (except section 71) penetration, touching or any other activity is sexual if a reasonable person would consider that –

  1. whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
  2. because of its nature it may be sexual and because of its circumstances of the purpose of any person in relation to it (or both) it is sexual.

The requirements of section 78(a) are reasonably clear, in that where an act is clearly sexual in nature. Indeed, even if the defendant’s intentions are entirely non-sexual, if the act itself is clearly sexual, the act will satisfy section 78(a).

The application of section 78(b) is slightly more complex. Where the question as to whether the act is sexual is ambiguous, the jury must consider firstly whether, in its view, the nature of the act may make it sexual and, if it does, whether in the particular circumstances of it, it was in fact sexual (R v H [2005] 1 WLR 2005).

Case in focus: R v H [2005] 1 WLR 2005

Sexual Assault

Section 3 provides:

  1. A person (A) commits an offence if –
  1. he intentionally touches another person (B),
  2. the touching is sexual,
  3. B does not consent to the touching, and
  4. A does not reasonably believe that B consents

The only element of this offence which requires consideration is touching and a victim does not necessarily need to be aware that they are being touched (R v Bounekhla [2006] EWCA Crim 1217). Nor does the victim’s body need to be touched (R v H [2005] 1 WLR 2005).

Causing a Person to Engage in Sexual Activity Without Consent

Section 4 provides:

  1. A Person (A) commits and offence if –
  1. he intentionally causes another person (B) to engage in an activity,
  2. the activity is sexual,
  3. B does not consent to engaging in the activity, and
  4. A does not reasonably believe that B consents

This section also has the effect of making a defendant liable if the victim is forced by the defendant to engage in sexual activity with somebody other than the defendant.

Sexual Offences Against Children

Sections 5 to 15 contain offences related to children. The first of these relates to sexual activity of the type set out in the adult offence with a child under the age of 13 (ss 5 – 8). Each of these offences removes any notion of consent from the offence.

The second set of offences applies to children between the age of 13 and 16 (ss 9 -15). In these offences, a defendant may be able to raise a defence if they are able to assert that they reasonably believed the child to be aged 16 or over.


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