SRN: 2120958
SRN: 2120958
LC/LI Criminal Law Exam January 2021
LC/LI Criminal Law (26315)
2854 Words
, SRN: 2120958
Question 4
This question relates to potential criminal offences under the Sexual Offences Act
2003 (SOA). I will discuss the liability of Alex and Dave in relation to these offences.
Alex’s Liability
It is alleged that Alex (D) may have committed rape when he penetrated Mike’s anus,
as Mike was unaware of Alex’s gender history when this occurred and may not have
been able to fully consent. Rape is criminalised under section 1 of the SOA but is
defined as penetration by the penis. Alex is therefore not liable for a section 1 offence
as he penetrated Mike (V) with his fingers and a sex toy, not his penis.
However, he may still be liable for a section 2 offence, which requires penetration by
any body part for sexual gratification without V’s consent. He satisfies the first two
actus reus elements for this offence as he has penetrated Mike’s anus with his fingers
and this was evidently for sexual gratification as sex toys were used. The third actus
reus element of V’s non-consent is harder to establish in this case. Consent is defined
as “a person [V] consents if he agrees by choice, and has the freedom and capacity to
make that choice.”1 It is not disputed that Mike consented at the time of the activity
but it is disputed whether he had freedom and capacity to consent as he did not have
the full information to consent. Section 76(2) of the SOA provides conclusive
presumptions of non-consent in cases where the defendant has intentionally deceived
the complainant as to the nature and purpose of the activity. The definition of nature
1 SOA, 2003, S.74
SRN: 2120958
LC/LI Criminal Law Exam January 2021
LC/LI Criminal Law (26315)
2854 Words
, SRN: 2120958
Question 4
This question relates to potential criminal offences under the Sexual Offences Act
2003 (SOA). I will discuss the liability of Alex and Dave in relation to these offences.
Alex’s Liability
It is alleged that Alex (D) may have committed rape when he penetrated Mike’s anus,
as Mike was unaware of Alex’s gender history when this occurred and may not have
been able to fully consent. Rape is criminalised under section 1 of the SOA but is
defined as penetration by the penis. Alex is therefore not liable for a section 1 offence
as he penetrated Mike (V) with his fingers and a sex toy, not his penis.
However, he may still be liable for a section 2 offence, which requires penetration by
any body part for sexual gratification without V’s consent. He satisfies the first two
actus reus elements for this offence as he has penetrated Mike’s anus with his fingers
and this was evidently for sexual gratification as sex toys were used. The third actus
reus element of V’s non-consent is harder to establish in this case. Consent is defined
as “a person [V] consents if he agrees by choice, and has the freedom and capacity to
make that choice.”1 It is not disputed that Mike consented at the time of the activity
but it is disputed whether he had freedom and capacity to consent as he did not have
the full information to consent. Section 76(2) of the SOA provides conclusive
presumptions of non-consent in cases where the defendant has intentionally deceived
the complainant as to the nature and purpose of the activity. The definition of nature
1 SOA, 2003, S.74
