SEXUAL OFFENCES
Statutory authority: Sexual Offences Act 2003 (“SOA”)
Steps
1. Identify the relevant offence under the SOA (S1-4)
a. Outline when the offence will be committed
b. Note the elements of the offence and what is in contention (usually consent)
c. If act requires a definition of ‘sexual’, discuss S78
d. If act requires a definition of ‘touching’, discuss S79
2. State that whether consent is given requires interpretation of ss. 75 and/or 76 i.e. on the given facts, either
the evidential or conclusive presumption may arise
a. State why this is so
i. If act was that of an intentional deception as to the nature/quality of the act or intentional
impersonation à S76
ii. If act was any one of the scenarios under S75(b), then…yeah
b. State what the effect of this will be
c. State whether the presumption can be rebutted
i. If S75, speculate on whether the presumption is rebutted
3. State that giving of consent may also require interpretation of S74 (general meaning; you will usually have to
consider this in any given case anyway)
a. Even if you think presumption in S75 won’t be rebutted, you must go on to consider what will
happen if it were à establish lack of consent under S74
4. State that the Crown needs to show D didn’t have a reasonable belief as to consent
a. State the relevant section (S1(2), 2(2), 3(2) and 4(2) respectively)
5. Conclude what this implies for the relevant person’s liability: are they liable for whatever offence it is?
Offences under the SOA
Rape (S1)
Offence committed when
• D intentionally penetrates V’s vagina, anus or mouth with his penis
• V doesn’t consent and
• D doesn’t reasonably believe V consents
Elements
• AR: D penetrated the vagina, anus or mouth of V with his penis and without V’s consent
o Intrinsically sexual act: having sex will necessarily establish the AR
• MR: D intended to penetrate the vagina, anus or mouth of V with his penis AND D didn’t reasonably believe
V consented
o S1(2): Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps D has taken to ascertain whether V consents.
Actus reus
Rape capable of being committed only by a male (penile penetration)
• But under S79(3) a post-operative transsexual can commit rape with her reconstructed penis
• Female can aid/abet the offence: possible of being convicted even if D is acquitted of rape on the basis of a
lack of MR (Cogan and Leak [1973])
• Female can also be charged with an offence under S4: causing a person to engage in sexual activity
• A husband can be guilty of raping his wife, but husbands shouldn’t be prosecuted for rapes that took place
before the law was reformed
o R v C [2004]: husband was convicted of rape for raping his wife in 1970, but the marital rape
exemption was abrogated only 22 years after the rape took place
Penetration
• Not defined, but S79(2) provides it’s a continuing act from entry to withdrawal
o Herring: submitted it should be given its normal meaning and it’s likely to be left to the jury to decide
• D can be convicted of rape where, having initially penetrated V with consent, V subsequently withdraws that
consent and D, being aware of that retraction of consent, doesn’t remove his penis (Leaver [2006] (CA))
• Withdrawal should be done within a reasonable period – left to the jury to decide
• No need to prove ejaculation
, o S&H: under the old SOA (S44 SOA 1956) there was a provision making clear that rape is complete
upon penetration without ejaculation, and though there isn’t a clear express provision affirming this
in the new SOA it’s submitted this should remain the state of the law
• Failure to establish penetration by a penis à verdict of attempted rape may be returned if D’s act amounted
t more than mere preparation to penile penetration
Mens rea
Consent: triggers S76 (conclusive), S75 (evidential) or S74 (general) (infra)
Intentional penetration
• Crime of basic intent
o Mistake of voluntary intoxication cannot be relied upon (Heard [2007]: intoxicated D rubbed penis
against a police officer’s thigh and tried to use voluntary intoxication as a defence; held Parliament
couldn’t have intended for SOA to change the old law)
• Following K [2008] it has been held that to charge D with rape where the allegation is that he penetrated
either V’s vagina or her anus isn’t to allege 2 offences
o But nonetheless S&H submit that if D has a reasonable belief in consent to vaginal sex and
unintentionally penetrates V’s anus, D hasn’t raped V
Assault by penetration (S2)
Offence committed when
• D intentionally penetrates the vagina or anus of V sexually, with a part of his body or anything else
• V doesn’t consent to the penetration
• D doesn’t reasonably believe V consents
Elements
• AR: D penetrated V’s vagina/anus with any part of his body or with anything else, without V’s consent AND
the penetration was sexual
• MR: D intentionally did so AND D did not reasonably believe V consented to the penetration
Offence is useful when V cannot remember, cannot tell, or lacks the capacity to tell whether the penetration was by a
penis or some other object
Actus reus
• Can be committed by a person of either sex on a person of either sex
• Act of penetration is regarded as continuing till withdrawal (supra)
• Absence of consent is key (infra)
• Where the act of penetration is likely/intended to cause ABH or worse and is performed for a sexual purpose,
D may be liable for an offence against the person even if V consents
o Hill [2006]: penetration with fingers in a forceful manner à charged with S18 OAPA
Mens rea
• Must be intentional and not reckless
• Intoxication isn’t a defence (supra)
Sexual assault (S3)
Offence committed when
• D intentionally touches another person sexually
• V doesn’t consent to the touching
• D doesn’t reasonably believe V consents
Actus reus
Definition of touching elaborated on in S79(8)
• Includes touching “with any part of the body”, “with anything else” and “through anything”
• Touching V’s clothing, or making something touch V, amounts to the offence (H [2005])
• But touching must also be sexual (per S78, infra) to amount to the offence
Statutory authority: Sexual Offences Act 2003 (“SOA”)
Steps
1. Identify the relevant offence under the SOA (S1-4)
a. Outline when the offence will be committed
b. Note the elements of the offence and what is in contention (usually consent)
c. If act requires a definition of ‘sexual’, discuss S78
d. If act requires a definition of ‘touching’, discuss S79
2. State that whether consent is given requires interpretation of ss. 75 and/or 76 i.e. on the given facts, either
the evidential or conclusive presumption may arise
a. State why this is so
i. If act was that of an intentional deception as to the nature/quality of the act or intentional
impersonation à S76
ii. If act was any one of the scenarios under S75(b), then…yeah
b. State what the effect of this will be
c. State whether the presumption can be rebutted
i. If S75, speculate on whether the presumption is rebutted
3. State that giving of consent may also require interpretation of S74 (general meaning; you will usually have to
consider this in any given case anyway)
a. Even if you think presumption in S75 won’t be rebutted, you must go on to consider what will
happen if it were à establish lack of consent under S74
4. State that the Crown needs to show D didn’t have a reasonable belief as to consent
a. State the relevant section (S1(2), 2(2), 3(2) and 4(2) respectively)
5. Conclude what this implies for the relevant person’s liability: are they liable for whatever offence it is?
Offences under the SOA
Rape (S1)
Offence committed when
• D intentionally penetrates V’s vagina, anus or mouth with his penis
• V doesn’t consent and
• D doesn’t reasonably believe V consents
Elements
• AR: D penetrated the vagina, anus or mouth of V with his penis and without V’s consent
o Intrinsically sexual act: having sex will necessarily establish the AR
• MR: D intended to penetrate the vagina, anus or mouth of V with his penis AND D didn’t reasonably believe
V consented
o S1(2): Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps D has taken to ascertain whether V consents.
Actus reus
Rape capable of being committed only by a male (penile penetration)
• But under S79(3) a post-operative transsexual can commit rape with her reconstructed penis
• Female can aid/abet the offence: possible of being convicted even if D is acquitted of rape on the basis of a
lack of MR (Cogan and Leak [1973])
• Female can also be charged with an offence under S4: causing a person to engage in sexual activity
• A husband can be guilty of raping his wife, but husbands shouldn’t be prosecuted for rapes that took place
before the law was reformed
o R v C [2004]: husband was convicted of rape for raping his wife in 1970, but the marital rape
exemption was abrogated only 22 years after the rape took place
Penetration
• Not defined, but S79(2) provides it’s a continuing act from entry to withdrawal
o Herring: submitted it should be given its normal meaning and it’s likely to be left to the jury to decide
• D can be convicted of rape where, having initially penetrated V with consent, V subsequently withdraws that
consent and D, being aware of that retraction of consent, doesn’t remove his penis (Leaver [2006] (CA))
• Withdrawal should be done within a reasonable period – left to the jury to decide
• No need to prove ejaculation
, o S&H: under the old SOA (S44 SOA 1956) there was a provision making clear that rape is complete
upon penetration without ejaculation, and though there isn’t a clear express provision affirming this
in the new SOA it’s submitted this should remain the state of the law
• Failure to establish penetration by a penis à verdict of attempted rape may be returned if D’s act amounted
t more than mere preparation to penile penetration
Mens rea
Consent: triggers S76 (conclusive), S75 (evidential) or S74 (general) (infra)
Intentional penetration
• Crime of basic intent
o Mistake of voluntary intoxication cannot be relied upon (Heard [2007]: intoxicated D rubbed penis
against a police officer’s thigh and tried to use voluntary intoxication as a defence; held Parliament
couldn’t have intended for SOA to change the old law)
• Following K [2008] it has been held that to charge D with rape where the allegation is that he penetrated
either V’s vagina or her anus isn’t to allege 2 offences
o But nonetheless S&H submit that if D has a reasonable belief in consent to vaginal sex and
unintentionally penetrates V’s anus, D hasn’t raped V
Assault by penetration (S2)
Offence committed when
• D intentionally penetrates the vagina or anus of V sexually, with a part of his body or anything else
• V doesn’t consent to the penetration
• D doesn’t reasonably believe V consents
Elements
• AR: D penetrated V’s vagina/anus with any part of his body or with anything else, without V’s consent AND
the penetration was sexual
• MR: D intentionally did so AND D did not reasonably believe V consented to the penetration
Offence is useful when V cannot remember, cannot tell, or lacks the capacity to tell whether the penetration was by a
penis or some other object
Actus reus
• Can be committed by a person of either sex on a person of either sex
• Act of penetration is regarded as continuing till withdrawal (supra)
• Absence of consent is key (infra)
• Where the act of penetration is likely/intended to cause ABH or worse and is performed for a sexual purpose,
D may be liable for an offence against the person even if V consents
o Hill [2006]: penetration with fingers in a forceful manner à charged with S18 OAPA
Mens rea
• Must be intentional and not reckless
• Intoxication isn’t a defence (supra)
Sexual assault (S3)
Offence committed when
• D intentionally touches another person sexually
• V doesn’t consent to the touching
• D doesn’t reasonably believe V consents
Actus reus
Definition of touching elaborated on in S79(8)
• Includes touching “with any part of the body”, “with anything else” and “through anything”
• Touching V’s clothing, or making something touch V, amounts to the offence (H [2005])
• But touching must also be sexual (per S78, infra) to amount to the offence
