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TSR Wiki > Study Help > Subjects and Revision > Revision Notes > Law > University Law Revision Notes > Revision:Sexual Offences

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Here are some guidelines for providing a first class answer to an examination problem question on sexual offences:

Sexual Offences Act 2003 came into force on 1 May 2004 and so is applicable.

GO THROUGH CHRONOLOGICALLY!

When the struggle began, the case for sexual assault became much stronger at that point. As struggle continues there is less and less justification for the defendant to assume there is consent.

If the defendants belief system is based upon early signals of sexual availability, then the more the victim put up a struggle which seemed increasingly overt and desperate, the weaker his claim to reasonable belief would be.

Contents 1 Section 3: Sexual assault 2 Deception: 3 RAPE: Section 1 4 Section 2: Assault by penetration 5 CHILD SEXUAL OFFENCES 6 Other items:

Section 3: Sexual assault

Sexual assault is committed when the defendant intentionally touches the victim: s3(1)(a), the touching is sexual (s3(1)(b), the victim does not consent to the touching (s3(1)(c) and the defendant does not reasonably believe the victim consents (s3(1)(d)

Section 79(8): touching includes ‘with any part of the body’, ‘with anything else’ or ‘through anything’ (clothing)

Actus reus:

The actus reus for section 3 was shown by the defendant touching the victim.

Actus reus: Is the touching sexual?

The actus reus also requires that the touching be sexual. Activity will be considered sexual if a reasonable person (objective test) would consider that because of its nature it is sexual (s78(a) or if this is contested (kissing, hugging), the activity may be considered sexual if the circumstances or purpose of any person in relation to it is sexual (s78(b). Taking into account the latter definition, it is maintained that the defendant’s behaviour may be sexual.

May take into account:

W [2005] – kissing was deemed sexual.

George [1956] – foot fetish

R v H [2005] – grabbing womans tracksuit bottoms

Criticisms: Smith & Hogan – claim that “fetishism knows no bounds”

'Actus reus: Does victim consent?

The actus reus also requires that the victim did not consent.

Section 74: General definition of consent:

Section 74 states that a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

In R v Olugboja [1981], Dunn LJ said that ‘there is a difference between consent and submission.’

Deception:

Deliberate: To fall into the conclusive presumptions about consent (whereby the actus reus and mens rea are automatically satisfied), a deception must be deliberate (Section 76 which built in Elbekkay)

Mens rea:

The mens rea for section 3 requires that the touching was intentional, and that the defendant knew the victim did not consent or that the defendant did not reasonably believe the victim consented (as opposed to ‘honestly believed’ which was the requirement prior to the Sexual Offences Act, see DPP v Morgan)

If D’s belief was based on mistake because he was drunk, Woods (1981) and Fotheringham suggests that such belief would be automatically regarded as unreasonable.

To ascertain reasonable belief one must consider all circumstances of the situation including those leading up to the event.

The test is objective. The White Paper, Protecting the Public described reasonable as the ‘behaviour of the majority’.

The section 75 rebuttable presumptions impact on whether or not consent is evident and also impact upon whether a reasonable belief can be established.

S75(a) violence against victim;

s75(b) violence against another;

s75(c) victim unlawfully detained;

s75(d) victim asleep/unconscious;

s75(e) physical disability;

s75(f) drugs without consent – not applicable if she took them freely (Malone).

Violence (a favourite with examiners):

The absence of any reasonable belief that V was consenting could be resolved under s75 if it can be shown that, immediately before the sex, D was using violence against V, or causing her to fear that immediate violence would be used against her; and he knew that those circumstances existed. If this was the case, the jury can presume that D did not reasonably believe that V consented, unless sufficient evidence is adduced by D to raise an issue as to whether he reasonably believed V was consenting.

If D does not, of itself, dispose of the mens rea, the issue of whether D’s belief in V’s consent was reasonable is to be determined having regard to all the circumstances, including any steps D took to ascertain whether V was consenting.

RAPE: Section 1

Actus reus:

The actus reus for rape is satisfyed by the penetration by penis of the vagina, anus or mouth by the defendant: s1(1)(a) and the victim did not consent: s1(1)(b)

Mens rea:

The mens rea for rape will be satisfied if it can be shown that the defendant intended to penetrate: s1(1)(a) and the defendant did not reasonably believe that the victim consented to the penetration: s1(1)(c). According to section 1(2) ‘whether a belief is reasonable is determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consent.’

Regarding, ‘all the circumstances’, it is a matter of judicial discretion what weight will be attached to characteristics such as D’s age, general sexual experience, any learning disability, etc.

As time has lapsed considerably, reasonable belief may now be regarded as weaker that before.

Section 74 states that a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

In R v Olugboja, Dunn LJ said that ‘there is a difference between consent and submission.’

Any section 75 rebuttable presumption applicable to the rape?

Section 2: Assault by penetration

Includes photos! – digital penetration (Corran)

The actus reus for section 2 is satisfied by the defendant’s penetration of the vagina or anus of the victim with a body part of anything else: s2(1)(a), that the penetration was sexual: s2(1)(b) (see definitional discussion of ‘sexual’ above) and that the victim did not consent.

The mens rea for section 2 will be satisfied if it can be shown that the defendant intentionally penetrated the victim: s2(1)(a), and that he did not reasonably believe that the victim consented: s2(1)(d).

Any section 75 rebuttable applicable to the assault by penetration?

CHILD SEXUAL OFFENCES

Popular examination sub-question: "Would it make any difference if victim was either 12 or 15 years old?"

If victim was under thirteen the section 5 offence: ‘rape of a child under 13’ would be committed. That offence requires that the defendant intentionally penetrated the vagina, anus or mouth of the victim with his penis: s5(1)(a), and the victim was under 13: s5(1)(b). All aspects of the consent issue are omitted. The maximum sentence is life imprisonment.

It is notable that the case of R v G could overturn strict liability on the argument that there should be an implied mens rea. If this occurs the defendant would be protected by reasonable belief.

Section 6: Assault of a child under 13 by penetration also applicable.

Section 7: Sexual assault of a child under 13 also applicable.

If the victim was 15, Section 1: rape would be applicable if an absence of consent can be shown.

If absence of consent is contentious, section 9 offence: ‘sexual activity with a child’ could be claimed. That offence requires that the defendant intentionally touches the victim: s9(1)(a), the touching is sexual: s9(1)(b), and that the victim is under 16 and the defendant does not reasonably believe the victim is under 16: s9(1)(c)(i).

If D was under 18, section 13 may be applied in conjunction with section 9.

Popular examination sub-question: "Should it make a difference?"

To adhere to the criminal law principles of minimum criminalisation and maximum certainty, as well as the general trend in English criminal law favouring subjective approaches, it is maintained that it should not make a difference.

The offence is one of strict liability which means that there is no defence. An honest mistake (even a reasonable one) as to child’s age is not a defence. It is maintained that this strict liability contravenes the correspondence principle.

The maximum sentence of life imprisonment is most severe. The offence also labels the defendant as a child rapist. What used to be called “unlawful intercourse” is now ‘RAPE’. It could be argued that the strict liability element came about as a response to media-created moral panics (Sarah Payne, Soham murders) rather than as a response to a genuine legislative need.

Denying the relevance of factual consent of the under 13 year old contravenes the law’s willingness to accept their capacity to consent in a medical capacity(Gillick competence). That consent is deemed irrelevant in a sexual capacity is paradoxical baring in mind that the existence of not of consent defines conventional rape.

On the other hand, strict liability does not violate article 6 ECHR as that article imposes no restriction on right of State to enforce strict liability. Furthermore, Article 6 is concerned with procedural fairness not substantive law.

Other items:

Section 4: causing sexual activity without consent

(1) A person (A) commits an offence if -

(a) he intentionally causes another person (B) to engage in an activity;

(b) the activity is sexual;

(c) B does not consent to engaging in the activity; and

(d) A does not reasonably believe that B consents.

• Reasonableness of belief is determined by reference ‘to all the circumstances’ including ‘steps taken to ascertain B’s consent’.

• No requirement that defendant is present when sex occurred nor for him to participate in the activity.

Causation principles: rapist may be regarded to have been a free, deliberate and informed intervening act.

Pre-2003 Act, D would have been judged on the facts as he honestly believed them (DPP v Morgan). The test is now objective, but the reassurances by (third party) may be seen as making D’s assumptions as to consent reasonable.

SENTENCE: Maximum life imprisonment.

If you have any questions about sexual offences, feel free to contact Tufts here at the student room.