SEXUAL OFFENCES
https://www.legislation.gov.uk/ukpga/2003/42/contents
There was significant reform enacted to sexual offences in the SOA 2003 despite the reluctancy to
adopt other reform proposals in criminal law due to numerous policy reasons-
High profile nature of such offences in the media
There had been a shift in the understanding of what constitutes sexual violation since the
previous act, which reflected outdated and discriminatory attitudes
There was a problem with under-reporting/lack of public confidence in
policing/prosecutors/perception of law as ‘victim-blaming’ (however, the reforms made have
clearly not had the desired effect of remedying this issue)
Poor conviction rate for reported offences
Key offences were scrutinised and updated (Setting the Boundaries (Home Office 2000) and
Protecting the Public (Home Office 2002))
Acknowledgment of the shift in societal conception of sexual offences requiring extensive
reform in the definition of such crimes, the investigation process and sentencing
However, prosecutions for rape have not become easier or more successful since the SOA 2003
Decline in the number of charges and prosecutions (and thus convictions) whilst there has
been little change in the overall prevalence of rape and sexual violence crimes
Emily Hunt, an independent advisor to The end-to-end rape review report on findings and
actions in her foreward to the report (2021) stated that, while there are 128,000 estimated
victims of rape a year, less than 20% report this to the police and only 1.6% of those
reported result in someone being charged (reflective of the austerity within the criminal
justice system leading to failings within the system)
The intended outcomes of the 2021 review include
An increased volume of cases progressing to trial
Better victim engagement
Increased public confidence in decisions made by the CPS
More robust case-building
Limiting requests for information from victims whilst protecting D’s right to a fair trial
However, it should be noted that this report contains nothing about changing the definitional
framework of the criminal law
The 4 key offences of the SOA 2003 and their common elements
In each of the key offences, it must be proved as part of the actus reus that V did not consent and
as part of the mens rea that D did not reasonably believe V consented (failure to prove either
element means that D is not guilty)
s1 ‘Rape’ (maximum life)
s2 ‘Assault by Penetration’ (maximum life)
s3 ‘Sexual assault’ (maximum 10 years)
, s4 ‘Causing a person to engage in sexual activity without consent’ (maximum 10 years or
life if penetration involved)
Rape
The actus reus of rape is contained in sub-s(1)
A ‘surgically constructed’ body part counts for this purpose (s79(3))
The crime is gender neutral as regards V and s79(3) applies to V’s surgically constructed
body parts
Penetration of the mouth can be rape (previously regarded only as sexual assault)
Where D penetrates V with consent, but then V changes her mind and D continues, this will
still be rape (Kaitamaki [1985])
How is non-consent proved?
In problem questions, start with the most advantageous provision from the prosecution’s perspective (s76,
then s75 and finally s74)
s74- offers a basic definition of consent in terms of agreement by choice where V has freedom and
capacity to choose (the burden falls on the prosecution to negate this)
s75- ‘evidential presumptions’ of non-consent which can be relied on by the prosecution in six
specific cases where V is in fear or incapacitated
s76- ‘conclusive presumptions’ in cases of deception as to nature/purpose of act or of
impersonation, which establish non-consent
s76 (applies to both actus reus and mens rea)
‘Relevant act’ encompasses all offences which may be charged relative to s76
The ‘conclusive presumption’ affects both actus reus and mens rea
https://www.legislation.gov.uk/ukpga/2003/42/contents
There was significant reform enacted to sexual offences in the SOA 2003 despite the reluctancy to
adopt other reform proposals in criminal law due to numerous policy reasons-
High profile nature of such offences in the media
There had been a shift in the understanding of what constitutes sexual violation since the
previous act, which reflected outdated and discriminatory attitudes
There was a problem with under-reporting/lack of public confidence in
policing/prosecutors/perception of law as ‘victim-blaming’ (however, the reforms made have
clearly not had the desired effect of remedying this issue)
Poor conviction rate for reported offences
Key offences were scrutinised and updated (Setting the Boundaries (Home Office 2000) and
Protecting the Public (Home Office 2002))
Acknowledgment of the shift in societal conception of sexual offences requiring extensive
reform in the definition of such crimes, the investigation process and sentencing
However, prosecutions for rape have not become easier or more successful since the SOA 2003
Decline in the number of charges and prosecutions (and thus convictions) whilst there has
been little change in the overall prevalence of rape and sexual violence crimes
Emily Hunt, an independent advisor to The end-to-end rape review report on findings and
actions in her foreward to the report (2021) stated that, while there are 128,000 estimated
victims of rape a year, less than 20% report this to the police and only 1.6% of those
reported result in someone being charged (reflective of the austerity within the criminal
justice system leading to failings within the system)
The intended outcomes of the 2021 review include
An increased volume of cases progressing to trial
Better victim engagement
Increased public confidence in decisions made by the CPS
More robust case-building
Limiting requests for information from victims whilst protecting D’s right to a fair trial
However, it should be noted that this report contains nothing about changing the definitional
framework of the criminal law
The 4 key offences of the SOA 2003 and their common elements
In each of the key offences, it must be proved as part of the actus reus that V did not consent and
as part of the mens rea that D did not reasonably believe V consented (failure to prove either
element means that D is not guilty)
s1 ‘Rape’ (maximum life)
s2 ‘Assault by Penetration’ (maximum life)
s3 ‘Sexual assault’ (maximum 10 years)
, s4 ‘Causing a person to engage in sexual activity without consent’ (maximum 10 years or
life if penetration involved)
Rape
The actus reus of rape is contained in sub-s(1)
A ‘surgically constructed’ body part counts for this purpose (s79(3))
The crime is gender neutral as regards V and s79(3) applies to V’s surgically constructed
body parts
Penetration of the mouth can be rape (previously regarded only as sexual assault)
Where D penetrates V with consent, but then V changes her mind and D continues, this will
still be rape (Kaitamaki [1985])
How is non-consent proved?
In problem questions, start with the most advantageous provision from the prosecution’s perspective (s76,
then s75 and finally s74)
s74- offers a basic definition of consent in terms of agreement by choice where V has freedom and
capacity to choose (the burden falls on the prosecution to negate this)
s75- ‘evidential presumptions’ of non-consent which can be relied on by the prosecution in six
specific cases where V is in fear or incapacitated
s76- ‘conclusive presumptions’ in cases of deception as to nature/purpose of act or of
impersonation, which establish non-consent
s76 (applies to both actus reus and mens rea)
‘Relevant act’ encompasses all offences which may be charged relative to s76
The ‘conclusive presumption’ affects both actus reus and mens rea
