SEXUAL OFFENCES
The Sexual Offences Act 2003:
Replaced unclear and contradictory case law
Previously, the law on sexual offences was based on decisions (common law)
Defined consent
The act is no as clear and precise as hoped.
Over 50 offences
The harm of sexual offences:
Sexual offences don’t require any harm to result for criminal liability
No requirement of physical or psychiatric injury
SOA employs a more objective MR standard
‘Special nature’ of sex offences reflected in SOA:
SOA: level of detail aims to take away the need for courts to interpret… but: core concepts still open
to contestation
SOA: Objective MR requirement – EG: ‘absence of reasonable belief in consent’ and sometimes strict
liability – gives rise to inconsistency with other offences against the person
- Is this a good or a bad thing? You decide…
Rape:
S1 SOA’03:
(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (V) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents….
AR Penetration of the vagina, anus or mouth of another person with his penis
B (V) does not consent
Rape can only be committed using a penis, anything else is not rape
MR Intentional penetration
A does not reasonably believe in B’s consent (OBJECTIVE TEST)
Consent is part of both MR and AR
Actus Reus of Rape:
Rape can only be committed D penetrates V with his penis – anything other than a penis will not
constitute rape but could be liable for offences under s2 assault by penetration
S79 (3) – will include surgically constructed penis – allowing conviction where D is a transgender
Penile Penetration: it ‘is a continuing act from entry to withdrawal’(s79(9)) - person can stop consent at
any time and if continued it becomes rape
- R v F 2013: agreed to sex but the husband had to pull out because she didn’t want to get pregnant.
Husband didn’t and continued – Rape
- Penetration can be minimal – doesn’t have to go all the way in for it to be rape
Age and Status restrictions:
- As long as D is over age of 10, he is capable of committing the offence on V of any age –
(criminal age of responsibility)
- Status is irrelevant - ‘Martial Rape’ established in R v R 1991
Must be without V’s Consent:
- Whether V consented or not isn’t always straightforward
- R v McFall 1994: D kidnapped V and held her in captivity, V pretended to consent for fear of her safety
o It’s about V’s state of mind which is left to the jury to decide
o Consent is defined under s74
California ‘Yes means Yes’ law:
Affirmative consent = Means affirmative, conscious and voluntary agreement to engage in sexual
activity… Lack of protest or resistance does not mean consent, nor does silence mean consent.
Rape S1 SOA’03:
, S75 a ‘evidential presumptions’ of non- consent
S76: ‘conclusive presumptions’ of non-consent
S74: Definition of consent: ‘a person consents if he agrees by choice, and has the freedom and capacity to
make that choice’.
Relevant to the MR and AR
always begin your analysis with the evidentiary presumption, s76 then s75 and then s74
- then s. 74 only if the circumstances in s. 76 nor s.75 are present.
These presumptions come from pre-2003 cases
S76 conclusive presumptions of non-consent:
Where these are present there if no consent.
(2) The circumstances are that --
(a) where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
and
(b) where the defendant intentionally induced the complainant to consent to the relevant act by impersonating a
person known personally to the complainant.
Deception as to the nature or purpose of act:
- V is deceived as to ‘nature’ of act where she is misled as to the physical mechanics of such act
- V is deceived as to ‘purpose’ of act where she is misled as to why it should happen
- R v Williams 1923: singing teacher deceived 16-year-old student into having sex and said it would
improve their voice
- With regard to ‘nature’, if V understands the basic dynamics of threat, deception as to associated
risks will not be sufficient to engage the conclusive presumptions - R v Dica 2004: D had
unprotected sex with 2 V, knowingly infecting them with HIV. Vs wouldn’t have consented if they had
known.
o D’s act of intercourse while he was knowingly infected was of a ‘different’ nature to that
consented to by V
- Limits of the term ‘purpose’: deception as to the purpose of the act doesn’t include deception as
to V’s purpose – ONLY D’s
o R v Linekar 1995: D had sex with a prostitute and promised to pay but had no intention to. Held:
guilty – V’s apparent consent wasn’t effective due to D’s deception – on appeal- allowed
> Consent remained effective she wasn’t deceived as to nature (she knew he was going to
penetrate her) or the purpose of D doing so (for his sexual gratification)
Deception as to the identity of D:
- Presumption of non-consent applies where D intentionally deceives V as to his identity
- Presumption will not apply where D pretends to have certain attributes – EG: a well-paid job, or
pretends to be someone who isn’t known to V personally such as a celebrity
S75 Evidential presumptions of non-consent:
If these circumstances existed and the D knew they did, then the complainant is to be taken as to not
have consent unless sufficient evidence is produced to the contrary.
(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to
raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that
the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably
believed it.
S75 circumstances:
(2) The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the
complainant or causing the complainant to fear that immediate violence would be used against him;
(violence/threat against the victim)
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to
fear that violence was being used, or that immediate violence would be used, against another person; (violence/
threat against another, e.g. child)
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(detention e.g. kidnapping)
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (asleep/passed out)
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the
relevant act to communicate to the defendant whether the complainant consented; (disability/inability to
communicate)
The Sexual Offences Act 2003:
Replaced unclear and contradictory case law
Previously, the law on sexual offences was based on decisions (common law)
Defined consent
The act is no as clear and precise as hoped.
Over 50 offences
The harm of sexual offences:
Sexual offences don’t require any harm to result for criminal liability
No requirement of physical or psychiatric injury
SOA employs a more objective MR standard
‘Special nature’ of sex offences reflected in SOA:
SOA: level of detail aims to take away the need for courts to interpret… but: core concepts still open
to contestation
SOA: Objective MR requirement – EG: ‘absence of reasonable belief in consent’ and sometimes strict
liability – gives rise to inconsistency with other offences against the person
- Is this a good or a bad thing? You decide…
Rape:
S1 SOA’03:
(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (V) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents….
AR Penetration of the vagina, anus or mouth of another person with his penis
B (V) does not consent
Rape can only be committed using a penis, anything else is not rape
MR Intentional penetration
A does not reasonably believe in B’s consent (OBJECTIVE TEST)
Consent is part of both MR and AR
Actus Reus of Rape:
Rape can only be committed D penetrates V with his penis – anything other than a penis will not
constitute rape but could be liable for offences under s2 assault by penetration
S79 (3) – will include surgically constructed penis – allowing conviction where D is a transgender
Penile Penetration: it ‘is a continuing act from entry to withdrawal’(s79(9)) - person can stop consent at
any time and if continued it becomes rape
- R v F 2013: agreed to sex but the husband had to pull out because she didn’t want to get pregnant.
Husband didn’t and continued – Rape
- Penetration can be minimal – doesn’t have to go all the way in for it to be rape
Age and Status restrictions:
- As long as D is over age of 10, he is capable of committing the offence on V of any age –
(criminal age of responsibility)
- Status is irrelevant - ‘Martial Rape’ established in R v R 1991
Must be without V’s Consent:
- Whether V consented or not isn’t always straightforward
- R v McFall 1994: D kidnapped V and held her in captivity, V pretended to consent for fear of her safety
o It’s about V’s state of mind which is left to the jury to decide
o Consent is defined under s74
California ‘Yes means Yes’ law:
Affirmative consent = Means affirmative, conscious and voluntary agreement to engage in sexual
activity… Lack of protest or resistance does not mean consent, nor does silence mean consent.
Rape S1 SOA’03:
, S75 a ‘evidential presumptions’ of non- consent
S76: ‘conclusive presumptions’ of non-consent
S74: Definition of consent: ‘a person consents if he agrees by choice, and has the freedom and capacity to
make that choice’.
Relevant to the MR and AR
always begin your analysis with the evidentiary presumption, s76 then s75 and then s74
- then s. 74 only if the circumstances in s. 76 nor s.75 are present.
These presumptions come from pre-2003 cases
S76 conclusive presumptions of non-consent:
Where these are present there if no consent.
(2) The circumstances are that --
(a) where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
and
(b) where the defendant intentionally induced the complainant to consent to the relevant act by impersonating a
person known personally to the complainant.
Deception as to the nature or purpose of act:
- V is deceived as to ‘nature’ of act where she is misled as to the physical mechanics of such act
- V is deceived as to ‘purpose’ of act where she is misled as to why it should happen
- R v Williams 1923: singing teacher deceived 16-year-old student into having sex and said it would
improve their voice
- With regard to ‘nature’, if V understands the basic dynamics of threat, deception as to associated
risks will not be sufficient to engage the conclusive presumptions - R v Dica 2004: D had
unprotected sex with 2 V, knowingly infecting them with HIV. Vs wouldn’t have consented if they had
known.
o D’s act of intercourse while he was knowingly infected was of a ‘different’ nature to that
consented to by V
- Limits of the term ‘purpose’: deception as to the purpose of the act doesn’t include deception as
to V’s purpose – ONLY D’s
o R v Linekar 1995: D had sex with a prostitute and promised to pay but had no intention to. Held:
guilty – V’s apparent consent wasn’t effective due to D’s deception – on appeal- allowed
> Consent remained effective she wasn’t deceived as to nature (she knew he was going to
penetrate her) or the purpose of D doing so (for his sexual gratification)
Deception as to the identity of D:
- Presumption of non-consent applies where D intentionally deceives V as to his identity
- Presumption will not apply where D pretends to have certain attributes – EG: a well-paid job, or
pretends to be someone who isn’t known to V personally such as a celebrity
S75 Evidential presumptions of non-consent:
If these circumstances existed and the D knew they did, then the complainant is to be taken as to not
have consent unless sufficient evidence is produced to the contrary.
(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to
raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that
the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably
believed it.
S75 circumstances:
(2) The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the
complainant or causing the complainant to fear that immediate violence would be used against him;
(violence/threat against the victim)
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to
fear that violence was being used, or that immediate violence would be used, against another person; (violence/
threat against another, e.g. child)
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(detention e.g. kidnapping)
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (asleep/passed out)
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the
relevant act to communicate to the defendant whether the complainant consented; (disability/inability to
communicate)
