SEXUAL OFFENCES
Part 1
1) Basis for criminalisation of sex offences
Rape is ‘one of the most serious and abhorrent crimes a person can commit’ (Home Office 2002)
Harm:
Physical Emotional/psychological
Vaginal/anal tearing Depression
Bruising PTSD/trauma
STI Vulnerability
Unwanted pregnancy Fear/anger
Other injuries Self-blame/guilt/shame
Man has sex with unconscious victim who suffers no physical or emotional harm. He uses a
condom and lubrication. No one ever finds out about it, including the victim.
(Gardner and Shute 2000)
Is this rape?
⇨ People have the right to decide with whom they have sexual relations (Munro 2014)
⇨ ‘violated’
2) Prevalence of sexual offending
Stranger vs acquaintance race:
▪ Stranger rape: stranger, dark alley, violence, resistance from V
▪ Acquaintance rape: someone known to the V
▪ 90% of victims of the most serious sexual offences in year 2012-13 knew their perpetrator
(MOJ 2013)
SOA 2003:
▪ Contains over 50 offences
▪ We will focus on three:
– Rape (s.1)
– Assault by penetration (s.2)
– Sexual assault (s.3)
a) Rape, SOA s1
AR =
1. Penile penetration of vagina, anus, or mouth -> only by man
2. V does not consent
, MR=
1. Intention to penetrate (vagina, anus, mouth) -> recklessness not enough
2. No reasonable belief in V’s consent
b) Assault by penetration, SOA s2
AR=
1. Penetration of the vagina or anus of another person (V) with a part of their body or anything
else
2. The penetration is sexual
3. V does not consent to the penetration
MR=
1. Intentional penetration
2. D does not reasonably believe that V consents
c) Sexual assault, SOA s3
AR=
1. Touching of another person (V)
2. The touching is sexual
3. V does not consent to the touching
MR=
1. The touching is intentional
2. D does not reasonably believe that V consents
Meaning of ‘sexual’ (s78):
- D’s conduct is sexual by its nature
Hill – D forcefully inserted his fingers into his partner’s vagina during a violent argument.
CA described as violent rather than sexual, but the nature of the assault makes it sexual regardless
- D’s conduct may be sexual + it’s made sexual by circs or D’s purpose
Practitioner conducting examinations requiring penetration/touching – what’s their purpose?
What if D removes a person’s shoe for sexual gratification because he has a foot fetish
3) Consent
AR = did the complainant consent?
MR = did D lack a reasonable belief in consent?
Consent as defence strategy = It is not a Defence, it is a defence strategy – if consent (or reasonable
belief in consent) was present, then the elements of the offence (AR and MR) have not been
committed
Objective MR = no reasonable belief in consent (entirely different from MR of other crimes)
o s74 SOA -> A person consents if they agree by choice, and have the freedom and capacity to
make that choice
Part 1
1) Basis for criminalisation of sex offences
Rape is ‘one of the most serious and abhorrent crimes a person can commit’ (Home Office 2002)
Harm:
Physical Emotional/psychological
Vaginal/anal tearing Depression
Bruising PTSD/trauma
STI Vulnerability
Unwanted pregnancy Fear/anger
Other injuries Self-blame/guilt/shame
Man has sex with unconscious victim who suffers no physical or emotional harm. He uses a
condom and lubrication. No one ever finds out about it, including the victim.
(Gardner and Shute 2000)
Is this rape?
⇨ People have the right to decide with whom they have sexual relations (Munro 2014)
⇨ ‘violated’
2) Prevalence of sexual offending
Stranger vs acquaintance race:
▪ Stranger rape: stranger, dark alley, violence, resistance from V
▪ Acquaintance rape: someone known to the V
▪ 90% of victims of the most serious sexual offences in year 2012-13 knew their perpetrator
(MOJ 2013)
SOA 2003:
▪ Contains over 50 offences
▪ We will focus on three:
– Rape (s.1)
– Assault by penetration (s.2)
– Sexual assault (s.3)
a) Rape, SOA s1
AR =
1. Penile penetration of vagina, anus, or mouth -> only by man
2. V does not consent
, MR=
1. Intention to penetrate (vagina, anus, mouth) -> recklessness not enough
2. No reasonable belief in V’s consent
b) Assault by penetration, SOA s2
AR=
1. Penetration of the vagina or anus of another person (V) with a part of their body or anything
else
2. The penetration is sexual
3. V does not consent to the penetration
MR=
1. Intentional penetration
2. D does not reasonably believe that V consents
c) Sexual assault, SOA s3
AR=
1. Touching of another person (V)
2. The touching is sexual
3. V does not consent to the touching
MR=
1. The touching is intentional
2. D does not reasonably believe that V consents
Meaning of ‘sexual’ (s78):
- D’s conduct is sexual by its nature
Hill – D forcefully inserted his fingers into his partner’s vagina during a violent argument.
CA described as violent rather than sexual, but the nature of the assault makes it sexual regardless
- D’s conduct may be sexual + it’s made sexual by circs or D’s purpose
Practitioner conducting examinations requiring penetration/touching – what’s their purpose?
What if D removes a person’s shoe for sexual gratification because he has a foot fetish
3) Consent
AR = did the complainant consent?
MR = did D lack a reasonable belief in consent?
Consent as defence strategy = It is not a Defence, it is a defence strategy – if consent (or reasonable
belief in consent) was present, then the elements of the offence (AR and MR) have not been
committed
Objective MR = no reasonable belief in consent (entirely different from MR of other crimes)
o s74 SOA -> A person consents if they agree by choice, and have the freedom and capacity to
make that choice
