7.2 Sexual Offences Lecture

Rape

The definition of rape is set out in section 1 Sexual Offences Act 2003 (SOA 2003).

Actus Reus

Penetration

Absence of Consent

Mens Rea

Intention to Penetrate

No Reasonable Belief in Consent

Presumptions as to Consent

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

Evidential Presumptions

A defendant must produce sufficient evidence to show that the presumption is rebuttable.

Conclusive Presumptions

There are two conclusive presumptions set out within section 76(2).

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.

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.

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.

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

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

Sexual Offences Against Children

The first of these offences relate 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).


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