Sexual Offences

Definition of ‘Sexual’

  • The law does not provide ‘sexual’ with a definition but rather an approach to determining the question as to whether there was an assault of penetration or sexual assault.
  • The test provided by the section is objective in order to determine whether the touching is obviously sexual regardless of the circumstances.

Example:

Was the touching either:  

  1. Obviously sexual or,
  2. Sexual by virtue of circumstances or purpose?

Definition of Sexual Assault

Sexual Assault is committed as an offence under the Sexual Offences Act 2003 if

  • He intentionally touches another person
  • The touching is sexual,
  • The person does not consent to the touching, and
  • He does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps he has taken to ascertain whether the victim consents.

 A person guilty of an offence under this section is liable:

  1. On summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
  2. On conviction on indictment, to imprisonment for a term not exceeding 10 years.

Actus Reus

Definition:

  • Actus reus is defined by law as the prohibited conduct or behaviour that the law seeks to prevent.
  • Actus reus is commonly referred to as the ‘guilty act’, the actus reus includes all aspects of the crime except the accused’s mental state.
  • In most cases the actus reus is simply just the act.

Actus Reus of Sexual Assault

In regards to sexual assault the Actus Reus consists of:

  1. Touching the other person
  2. Touching must be sexual
  3. Touching must have occurred without the other person’s consent

Mens Rea of Sexual Assault

  • Mens Rea in regards to sexual assault looks at the perpetrators intention.

The question asked is if the touching was intentional, if the accused reasonably believed that the victim consented and whether his belief was reasonable having regard to all the circumstances, including any steps the perpetrator had taken to ascertain whether the victim consented.

Assault by Penetration

Assault by Penetration can be committed by both males and females. The Act currently states that a person commits an offence if:

  1. He intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
  2. the penetration is sexual,
  3. B does not consent to the penetration, and
  4. A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps he has taken to ascertain whether the victim consents.

  • A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Actus Reus of Assault by Penetration

In regards to assault by penetration the Actus Reus consists of:

  • Sexual penetration of the vagina or anus,
  • With a part of the defendants body other than his penis or any other object,

Penetration must have occurred without the victims consent.

Mens Rea of Assault by Penetration

  • Mens Rea in regards to assault by penetration looks at the perpetrators intention.

The question asked is if the touching was intentional, if the accused reasonably believed that the victim consented and whether his belief was reasonable having regard to all the circumstances, including any steps the perpetrator had taken to ascertain whether the victim consented.

Rape

  • Rape is generally regarded as the most grave of all the sexual offences and is usually punished severely.

The general definition of rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent.

A person has committed an act of rape if:

  1. He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
  2. The victim does not consent to the penetration, and
  3. He does not reasonably believe that the victim consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps he has taken to ascertain whether the victim consents.

  • A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Penile Penetration

  • As is shown above the definition of rape is restricted to penetration by the penis of the vagina, anus or mouth of the victim.
  • While the offence can only be committed by a man a woman is capable of being an accomplice depending on the incident occurred.
  • Following common law sexual intercourse is regarded as being a continuing act. This means that consent can be withdrawn at any time before completion.

Example:

Susan and Paul are engaging in sexual intercourse. After Paul has penetrated Susan he becomes aware that she is no longer consenting but does not withdraw and continues. Paul is therefore guilty of rape.

Of the Vagina, Anus or Mouth

  • The law recognises that forced oral sex is ‘as horrible, as demeaning and as traumatising as other forms of forced penile penetration’.
  • The law also defines vagina as including the vulva.

Without consent

In order for rape to have occurred the victim must not have consented to the penetration.

Section 74 of The Sexual Offences Act 2003

‘A person consents if she agrees by choice, and has the freedom and capacity to make that choice’.

The definition makes it clear that a person will not be consenting unless

  • There is an agreement by choice,
  • The agreement was freely entered into and
  • By a person with capacity.
  • Lack of a person’s protest or resistance does not signify consent.

Definition of Capacity

A person will lack the capacity to consent if:

  • At the time h/she has no real understanding of what is involved or has such limited knowledge or
  • Understanding as not to be in a position to decide whether or not to agree.

It is also worth noting that the observations on capacity in relation to non-sexual offences equally apply here.

Example:

  • If a person’s suffers either from a physical or mental incapacity where it affects their ability to understand the nature of the sexual act would be considered to lack the capacity to consent.
  • If the victim suffers from immaturity, a learning disability or age-related vulnerability they will also be considered to lack the capacity to consent.

Therefore, in order to have the capacity to consent one must be able to understand relevant information and to weigh that information so as to arrive at a choice.

Belief of Consent

It is the responsibility of the prosecution to show that the defendant did not believe there was

  • Consent,
  • Provide evidence to show that the defendant did not believe there was consent and,
  • That the defendant’s belief of consent was not a reasonable belief.
  • This is shown by looking at the claimant’s freedom and capacity to consent.

Incapacity to Consent through Voluntary Intoxication

There is no special rule applicable to drink and rape. Therefore, both the facts of the case and the scenario are to be considered.

Unreasonable Belief of Consent

  • If the defendant knows that the victim did not consent,
  • Nor does he not care one way or another,
  • If he fails to ask in circumstances where it would be reasonable to do so,
  • His belief in consent was not reasonable
  • He will therefore be found guilty of rape

Mistaken Belief of Consent

  • The defendant may assert that he mistakenly believed that the victim consented to the penetration.
  • Any belief in consent that the defendant possesses, whether mistaken or not must be reasonable
  • However, if the defendant is in any doubt as to whether or not she consents to the intercourse, it would be reasonable to expect the defendant to ask.

Example:

Mary and Clifton work together and decide to stay late in the office to prepare some work for a meeting taking place in the morning. Clifton offers Mary a lift home which she accepts. Once they arrive at Marys she invites Clifton in for a late night coffee. Clifton accepts and asks if he can spend the night with Mary. Mary agrees but informs Clifton that she is not into one night stands. On that basis Clifton embraces Mary goes too far and has non-consensual sexual intercourse with Mary. On this basis it will be for the jury to decide if Clifton reasonably believed that Mary consented to sexual intercourse under mistaken belief.

Section 75 of The Sexual Offences Act 2003

  • Section 75 provides a set of circumstances in which consent will be deemed to be absent.
  • However, absence of consent can be rebutted by the defendant.
  • The Act sets a list of circumstances in which consent will be presumed absent and secondly gives rise to the presumption that the defendant did not reasonably believe in the victims consent.

If in proceedings for an offence to which this section applies it is proved

  1. That the defendant did the relevant act,
  2. That any of the circumstances specified in subsection (2) existed, and
  3. That the defendant knew that those circumstances existed,

Under these circumstances 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.

The circumstances are that:

  • 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;
  • 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;
  • The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;.
  • The complainant was asleep or otherwise unconscious at the time of the relevant act;
  • 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;
  • Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

Prosecution under Section 75 of The Sexual Offences Act

It is the prosecution that must present sufficient evidence to the court that one of the circumstances apply to the case, for example:

  • The claimant was asleep at the time of the act.

The burden of proof then passes to the respondent to provide evidence that casts doubt on the presumption that the victim did not consent to the intercourse. Mere belief that the claimant consented is not enough. However, once the victims consent becomes an issue suggesting that there is evidence either way the prosecution must prove beyond all reasonable doubt that the victim did not consent.

Example:

The presumption of consent under Section 75 will only arise in a rape case where the prosecution can prove:

  • Penile penetration of the victim by the defendant;
  • The specified circumstance under Section75
  • He was aware of the circumstance,

Threats of Immediate Violence Against the Complainant

  • The threat here does not need to come from the defendant.

Unlawfully Detained at the Time of the Act

  • Unlawfully detaining the victim at the time of the act.

Asleep at the Time of the Act

  • There is a presumption that a victim who was asleep during the intercourse did not consent.

Unconscious at the Time of the Act

  • There is a presumption that a victim who was unconscious during the intercourse did not consent.
  • The victim can be unconscious because of injury, illness or self-induced intoxication due to drugs or alcohol.
  • However, if a person is just short of unconsciousness this falls outside the provision of Section 75 and will become a matter of consent under Section 74

Physical Disability and Inability to Communicate

  • Only relates only to a person’s physical disability or lack of physical ability to communicate.
  • Mental inability is not included.

Administration/Cause to Be Taken a Substance Capable of Causing Stupefaction or Overpowerment

  • This provision is not limited to specific substances and includes any drug or the secret administration of alcohol by spiking a victim’s drink.
  • It critical that the administration is in order to obtain sexual intercourse by causing incapacity or to obtain consent by lowering the victim’s resistance or mood.
  • The substance must also be capable of causing or enabling stupefaction or overpowering the victim however, stupefaction is not defined.

Definition of Administration

  • This refers to defendant spiking the drink himself.

Definition of ‘Causing to be Taken’

  • Causing to be taken occurs when the victim taken the drug herself under duress or deception

Section 76 of The Sexual Offences Act 2003

  • Focuses on both fraud and consent.
  • The section sets out two circumstances concerned with fraudulently obtained consent where consent will be conclusively presumed to be absent.
  • Absence of consent cannot be rebutted by the defendant.

If in proceedings, for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection existed, it is to be conclusively presumed:

  1. That the complainant did not consent to the relevant act, and
  2. That the defendant did not believe that the complainant consented to the relevant act.
  3. The circumstances are that:
  • He intentionally deceived the complainant as to the nature or purpose of the relevant act;
  • He intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

Where the defendant is found to have intentionally deceived the victim about a matter relating to the nature or purpose of the act, or where he impersonates someone that she knows, it will be unanimously presumed that she did not consent and that he knew.

To put it simply, if at the time of the sexual activity a person:

  • Is mistaken as to a fact; and
  • Had she/he known that the truth about that fact would not have consented to it then she/he did not consent to the sexual activity. If the defendant knows (or ought to know) that she/he did not consent (in the sense just described) then she/he is guilty of an offence.

Fraud as to Nature or Purpose

Example:

Claire submits to having sexual intercourse with Harry her music teacher because he convinced her that it would improve her breathing. Harry will be charged with deception.

Example:

David and Sarah meet on a night out and decide to go back to David’s hotel. Before they engage in sexual intercourse, Sarah asks David if he is HIV. David is HIV positive but informs Sarah that he is not. David and Sarah then engage sexual intercourse without a condom. David will potentially be charged with a rape conviction as he lied regarding his health status.

Example:

Sheldon and Fahima have been dating for 3 years. Sheldon is scared that Fahima is going to break up with him. Sheldon starts sending Fahima threatening messages over Facebook and Whatsapp anonymously and some pretending to be a police officer. In one of the messages Fahima is informed by the police officer that she must engage in sexual intercourse with Sheldon otherwise he will commit suicide and she will be arrested. Fahima therefore engages in sexual intercourse with Sheldon. Sheldon will be charged with deception

Fraud as to Identity of the Person

  • Impersonation of a celebrity is not included in the Act.
  • Identity does not also include a person’s attributes.

Marital Rape

  • A Husband can be found guilty of raping his wife as the wife is entitled to revoke her consent to sexual intercourse under any circumstances.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.