Michaelmas 2021 Dr RC Tolley
SEXUAL OFFENCES
INTRODUCTION
[VIDEO IA]
4 lecture ‘hours’ on this topic.
Each scheduled lecture ‘hour’ will be delivered as a ‘set’ of shorter
videos. Some ‘sets’ may be slightly longer than an hour, but in total
my videos will not exceed the remaining scheduled lecture hours.
Only minimal detail will appear on the slides; more detail is provided
on the handout
PART I: AN OVERVIEW OF THE FOUR NON-CONSENSUAL SEXUAL
OFFENCES
1.1 Preliminary Matters
A system in crisis?
Rape and sexual assault are under-reported; very few reports result
in prosecution and conviction rates are low.
Complex and multifaceted drivers of these worrying statistics, many
of which have little to do with the substantive law but involve
culture, policy, practice and resourcing at all levels of the criminal
justice system.
For context (if you are interested), see a selection from:
Sexual offences in England and Wales overview: year ending
March 2020 (Crime Survey for England and Wales, Office of
National Statistics)
HMCPSI, ‘2019 Rape Inspection: A thematic review of rape
cases by HM Crown Prosecution Service Inspectorate (Dec
2019)
End Violence Against Women and Girls Coalition, et al. ‘The
Decriminalisation of Rape: Why the justice system is failing
rape survivors and what needs to change’ (2020)
1
,Michaelmas 2021 Dr RC Tolley
Ministry of Justice, The end-to-end rape review report on
findings and actions (CP 437, 2021)
Specific issues arising in the courtroom:
o Admission of evidence relating to sexual history of the
complainant
(if interested, see Laura Hoyano, 'Cross-examination of
Sexual Assault Complainants on Previous Sexual
Behaviour: Views from the Barristers' Row’ [2019]
Criminal Law Review 77)
o Rape myths and stereotypes in the jury room
C. Thomas, ‘The 21st Century Jury: Contempt, Bias and
the Impact of Jury Service’ [2020] Crim LR 987.
Chalmers, Leverick and Munro, ‘Why the jury is, and
should still be, out on rape deliberation’ [2021] Crim LR
753
The modern law: The Sexual Offences Act 2003
Wholesale reform of the law governing sexual offences.
Modernise the law clarify the meaning of consent, stronger
protection for victims.
Sexual autonomy is the underlying rationale of the non-consensual
sexual offences.
Home Office, Setting the Boundaries: Reforming the Law on Sexual
Offences, (vol 1, 2000).
[Video 1B]
The structure of the lecture series:
Part I: Overview of the offences + s78 (lecture hour 1)
Part II: Consent and the corresponding mens rea
Conclusive and evidential presumptions (lecture hour 2)
s74 and ‘No Reasonable Belief in consent’ (lecture hour 3)
Part III: Critical reflections on consent (lecture hour 4)
2
,Michaelmas 2021 Dr RC Tolley
Four offences in sections 1-4 of the Sexual Offences Act 2003
s1 Rape
s2 Assault by penetration
s3 Sexual assault
s4 Causing another person to engage in sexual activity
without consent
Note that these offences use ‘A’ and ‘B’ to refer to the defendant and
complainant. I will use ‘D’ and ‘C’.
Other important statutory provisions:
s78 Definition of sexual (s78)
s74 Definition of consent (s74)
ss 75, 76 (& 77) Evidential and conclusive presumptions of absence of
both consent and lack of reasonable belief in consent
s79 Supplementary definitions/principles
PQ Tip:
Do not imply that D bears the burden of proving that C consented or
that D had a reasonable belief in consent.
Also avoid implying that the prosecution must show that C consented
(by describing ‘consent’ as an ‘element’ of the offence, rather than
‘non-consent, or the absence of consent, or such like)!
3
, Michaelmas 2021 Dr RC Tolley
1.2 An overview of the offences (focusing on behaviour
elements and corresponding mens rea)
Common elements across s1-4: lack of consent; lack of reasonable
belief in consent; intention with respect to the behaviour element
Common element across s2-3: the behaviour element must be sexual,
within the terms of s78 SOA 2003 (no need to prove this separately for
rape, the assumption being that the behaviour element in rape is
inherently sexual).
Point of distinction: behaviour element
1.2.1Rape
s1 Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of
another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard
to all the circumstances, including any steps A has taken to
ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on
conviction on indictment, to imprisonment for life.
Four offence elements:
(1)Intentional
(2)Penile penetration of vagina, anus or mouth
(3)Without consent
(4)D lacks a reasonable belief in C’s consent.
Maximum sentence of life imprisonment.
Penetration is a continuing act from entry to withdrawal (s79(2)).
See also Kaitamaki
Note that s79(3): ‘References to a part of the body include
references to a part surgically constructed (in particular, through
4
SEXUAL OFFENCES
INTRODUCTION
[VIDEO IA]
4 lecture ‘hours’ on this topic.
Each scheduled lecture ‘hour’ will be delivered as a ‘set’ of shorter
videos. Some ‘sets’ may be slightly longer than an hour, but in total
my videos will not exceed the remaining scheduled lecture hours.
Only minimal detail will appear on the slides; more detail is provided
on the handout
PART I: AN OVERVIEW OF THE FOUR NON-CONSENSUAL SEXUAL
OFFENCES
1.1 Preliminary Matters
A system in crisis?
Rape and sexual assault are under-reported; very few reports result
in prosecution and conviction rates are low.
Complex and multifaceted drivers of these worrying statistics, many
of which have little to do with the substantive law but involve
culture, policy, practice and resourcing at all levels of the criminal
justice system.
For context (if you are interested), see a selection from:
Sexual offences in England and Wales overview: year ending
March 2020 (Crime Survey for England and Wales, Office of
National Statistics)
HMCPSI, ‘2019 Rape Inspection: A thematic review of rape
cases by HM Crown Prosecution Service Inspectorate (Dec
2019)
End Violence Against Women and Girls Coalition, et al. ‘The
Decriminalisation of Rape: Why the justice system is failing
rape survivors and what needs to change’ (2020)
1
,Michaelmas 2021 Dr RC Tolley
Ministry of Justice, The end-to-end rape review report on
findings and actions (CP 437, 2021)
Specific issues arising in the courtroom:
o Admission of evidence relating to sexual history of the
complainant
(if interested, see Laura Hoyano, 'Cross-examination of
Sexual Assault Complainants on Previous Sexual
Behaviour: Views from the Barristers' Row’ [2019]
Criminal Law Review 77)
o Rape myths and stereotypes in the jury room
C. Thomas, ‘The 21st Century Jury: Contempt, Bias and
the Impact of Jury Service’ [2020] Crim LR 987.
Chalmers, Leverick and Munro, ‘Why the jury is, and
should still be, out on rape deliberation’ [2021] Crim LR
753
The modern law: The Sexual Offences Act 2003
Wholesale reform of the law governing sexual offences.
Modernise the law clarify the meaning of consent, stronger
protection for victims.
Sexual autonomy is the underlying rationale of the non-consensual
sexual offences.
Home Office, Setting the Boundaries: Reforming the Law on Sexual
Offences, (vol 1, 2000).
[Video 1B]
The structure of the lecture series:
Part I: Overview of the offences + s78 (lecture hour 1)
Part II: Consent and the corresponding mens rea
Conclusive and evidential presumptions (lecture hour 2)
s74 and ‘No Reasonable Belief in consent’ (lecture hour 3)
Part III: Critical reflections on consent (lecture hour 4)
2
,Michaelmas 2021 Dr RC Tolley
Four offences in sections 1-4 of the Sexual Offences Act 2003
s1 Rape
s2 Assault by penetration
s3 Sexual assault
s4 Causing another person to engage in sexual activity
without consent
Note that these offences use ‘A’ and ‘B’ to refer to the defendant and
complainant. I will use ‘D’ and ‘C’.
Other important statutory provisions:
s78 Definition of sexual (s78)
s74 Definition of consent (s74)
ss 75, 76 (& 77) Evidential and conclusive presumptions of absence of
both consent and lack of reasonable belief in consent
s79 Supplementary definitions/principles
PQ Tip:
Do not imply that D bears the burden of proving that C consented or
that D had a reasonable belief in consent.
Also avoid implying that the prosecution must show that C consented
(by describing ‘consent’ as an ‘element’ of the offence, rather than
‘non-consent, or the absence of consent, or such like)!
3
, Michaelmas 2021 Dr RC Tolley
1.2 An overview of the offences (focusing on behaviour
elements and corresponding mens rea)
Common elements across s1-4: lack of consent; lack of reasonable
belief in consent; intention with respect to the behaviour element
Common element across s2-3: the behaviour element must be sexual,
within the terms of s78 SOA 2003 (no need to prove this separately for
rape, the assumption being that the behaviour element in rape is
inherently sexual).
Point of distinction: behaviour element
1.2.1Rape
s1 Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of
another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard
to all the circumstances, including any steps A has taken to
ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on
conviction on indictment, to imprisonment for life.
Four offence elements:
(1)Intentional
(2)Penile penetration of vagina, anus or mouth
(3)Without consent
(4)D lacks a reasonable belief in C’s consent.
Maximum sentence of life imprisonment.
Penetration is a continuing act from entry to withdrawal (s79(2)).
See also Kaitamaki
Note that s79(3): ‘References to a part of the body include
references to a part surgically constructed (in particular, through
4
