By Law Teacher
7.1 Sexual Offences – Introduction
Welcome to the fifth topic in this module guide – Sexual Offences! Sexual Offences encompasses a variety of crimes that include, but are not limited to, rape, assault by penetration, sexual assault, causing a person to engage in sexual activity without consent and sexual offences against children.
The majority of sexual offences are now enclosed within the Sexual Offences Act 2003, which was intended to be a large-scale revision of the law of sexual offences, most prominently, with regards to consent. The act also redefined and clarified a few terms as well as introducing new types of sexual offences. Furthermore, the act offers greater protection to individuals from offenders.
Goals for this section:
- To understand the actus reus and mens rea components of rape, assault by penetration, sexual assault, causing a person to engage in sexual activity without consent and sexual offences against children.
- To recognise the emergence and the development in case law for each of the offences mentioned above.
Objectives for this section:
- To be able to appreciate the complexities of consent with regards to the actus reus and mens rea of sexual offences, and the possibility that different conclusions could be drawn from the same set of facts. Additionally, the importance that all aspects are considered when addressing questions where consent is key.
- To be able to delineate between sections 5 – 8 and sections 9 – 15 as it applies to sexual offences against children.
- To be able to analyse and evaluate the nuances of all the sexual offences, as required in an examination.
7.2 Sexual Offences Lecture
Since almost all sexual offences are now contained within the provisions of the Sexual Offences Act 2003 (SOA 2003), many of the key terms are interchangeable between the various offences.
The definition of rape is set out in section 1, which provides:
- A person (A) commits and offence if –
- he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- B does not consent to the penetration, and
- A does not reasonably believe that B consents
- Whether a belief is reasonable is to be determined having regard to all the circumstances, including and steps A has taken to ascertain whether B consents.
- Sections 75 and 76 apply to an offence under this section.
Sections 75 and 76 address certain presumptions as to consent and will be considered below.
The offence can be broken down into four elements:
- Penetration with the defendant’s penis of the complainant’s vagina, anus or mouth;
- The complainant did not consent;
- The penetration was intentional;
- The defendant did not reasonably believe that complainant consented.
The first two elements contain the actus reus of the offence, the second two the mens rea.
The first part of the actus reus of rape makes it clear that it is an offence that can only be committed by a man. Section 79(3) provides that parts of the body that are surgically constructed fall with the remit of the Act. The limitation on penetration with a penis means that a woman can never be guilty of rape.
The term penetration does not simply apply to the initial penetration, but constitutes a continuing act from entry to withdrawal (s 79(2)).
Absence of Consent
Firstly, consent forms part of the actus reus and the mens rea of the offence, and therefore it is important to distinguish between the two elements. Secondly, the notion of what constitutes consent is largely a jury question.
Section 74 provides that:
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
A complainant may or may not consent without any extrinsic demonstration of their frame of mind.
Case in focus: R v Kirk  EWCA Crim 434
The issue of consent is further complicated by the fact that it can cover a range of reactions ranging from reluctant agreement to an express desire for the penetration to occur (R v Watson  EWCA Crim 559).
The second element contained within the definition of consent relates to the complainant’s capacity to give consent (R v Howard(1965) 50 Cr App R 56).
In R v Cooper  1 WLR 1786 it was held that the question that must be asked is firstly, whether a complainant is able to understand the information relevant to the decision that they must make and secondly, whether they are able to weigh that information to be able to make a choice.
The second situation where capacity may be a specific issue relates to where a complainant is voluntarily intoxicated (R v Coates  1 Cr App R 52).
Case in focus: R v Hysa  EWCA Crim 2056
Until relatively recently a woman could not refuse to have sexual intercourse with her husband. This position was changed in R v R  1 AC 599.
Intention to Penetrate
For these purposes, all that is required is that the act of penetration is a deliberate or voluntary one (R v Heard  QB 43).
No Reasonable Belief in Consent
This is not an entirely objective test, in that section 1(2) provides that regard should be had to all of the circumstances.
Particular personality traits or a particular mental disorder might be relevant to whether a defendant can be considered to have a reasonable belief in consent (R v Braham  EWCA Crim 3).
Self-induced intoxication cannot give rise to a reasonable belief in consent (R v Grewal  EWCA Crim 2448).
Section 1(2) does not require a defendant to take positive steps in an attempt to ascertain whether a complainant is, in fact, consenting.
Presumptions as to Consent
SOA 2003 creates two distinct types of presumptions as to whether the complainant consented to the penetration.
These presumptions create a degree of difficulty in that where one arises, a defendant must produce sufficient evidence to show that the presumption is rebuttable (s 75(1)). However, it is not necessarily sufficient for a defendant to assert that they believed that, despite the section 75 presumption, the complainant consented (R v Ciccarelli  1 CR App R 190).
The application of the section is fourfold:
- If a section 75 presumption arises and the defendant cannot adduce evidence to rebut it, consent will not occur or they will not have a reasonable belief in consent.
- If they are able to adduce evidence, the question as to whether the evidence is sufficient to rebut is one for the jury.
- If the jury consider the evidence sufficient to rebut, the prosecution must produce evidence that demonstrates that the complainant did not consent.
- In this circumstance, the ordinary approach as to the defendant’s reasonable belief applies.
There are six evidential presumptions.
- 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. It is important to note that the use or threat of violence need not come from the defendant. It is violence directed at the complainant, whatever its origin that is relevant.
- 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. This section reflects that view set out above that an unconscious person cannot consent.
- 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 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. The important point in the context of this presumption is that the complainant’s condition at the time that the relevant act occurred is irrelevant to the operation of the presumption. All that is required is that the overpowering drug is administered, it does not matter whether the complainant was actually overpowered.
The ability for these presumptions to be rebutted is limited.
There are two conclusive presumptions set out within section 76(2). The first of these provides that a complainant will not be considered to have consented if the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (s 76(2)(a)).
This presumption will arise where a defendant has, for example, informed a complainant that they are going to perform a medical procedure on them where in reality the defendant simply intends to have sexual intercourse, with the result that the complainant consents to the penetration (R v Flattery(1877) 2 QB 410).
Cases in focus: R v Jheeta  2 Cr App R 477 and R v Devonald  EWCA Crim 527
The second conclusive presumption arises where the defendant induces the complainant to consent to the relevant act by impersonating a person known personally to the complainant (s 76(2)(b)(R v Elbekkay  Crim LR 163).
Non-disclosure of sexually transmitted diseases
In R v B  1 WLR 1567, it was made clear that non-disclosure of a sexually transmitted disease did not activate section 76(2)(a). It was also held in R v Dica  QB 1257 that non-disclosure would not vitiate consent under section 74.
The position in respect of whether a complainant consents with a mistaken belief as to the nature or quality of the act is linked closely to both section 76 and the general ability to make an informed choice (R v Tabussum  2 Cr App R 328)
Assault by Penetration
Section 2 provides:
- A person(A) commits an offence if –
- he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
- the penetration is sexual,
- B does not consent to the penetration, and
- A does not reasonably believe that B consents.
The mens rea of this offence is identical to that discussed above in relation to rape. The actus reus differs in two respects. The first difference is that penetration can be with any part of the defendant’s body or anything else.
The second actus reus element requires the penetration to be sexual.
Section 78 provides:
For the purpose of this Part (except section 71) penetration, touching or any other activity is sexual if a reasonable person would consider that –
- whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
- because of its nature it may be sexual and because of its circumstances of the purpose of any person in relation to it (or both) it is sexual.
The requirements of section 78(a) are reasonably clear, in that where an act is clearly sexual in nature. Indeed, even if the defendant’s intentions are entirely non-sexual, if the act itself is clearly sexual, the act will satisfy section 78(a).
The application of section 78(b) is slightly more complex. Where the question as to whether the act is sexual is ambiguous, the jury must consider firstly whether, in its view, the nature of the act may make it sexual and, if it does, whether in the particular circumstances of it, it was in fact sexual (R v H  1 WLR 2005).
Case in focus: R v H  1 WLR 2005
Section 3 provides:
- A person (A) commits an offence if –
- he intentionally touches another person (B),
- the touching is sexual,
- B does not consent to the touching, and
- A does not reasonably believe that B consents
The only element of this offence which requires consideration is touching and a victim does not necessarily need to be aware that they are being touched (R v Bounekhla  EWCA Crim 1217). Nor does the victim’s body need to be touched (R v H  1 WLR 2005).
Causing a Person to Engage in Sexual Activity Without Consent
Section 4 provides:
- A Person (A) commits and offence if –
- he intentionally causes another person (B) to engage in an activity,
- the activity is sexual,
- B does not consent to engaging in the activity, and
- A does not reasonably believe that B consents
This section also has the effect of making a defendant liable if the victim is forced by the defendant to engage in sexual activity with somebody other than the defendant.
Sexual Offences Against Children
Sections 5 to 15 contain offences related to children. The first of these relates to sexual activity of the type set out in the adult offence with a child under the age of 13 (ss 5 – 8). Each of these offences removes any notion of consent from the offence.
The second set of offences applies to children between the age of 13 and 16 (ss 9 -15). In these offences, a defendant may be able to raise a defence if they are able to assert that they reasonably believed the child to be aged 16 or over.
7.3 Sexual Offences Lecture – Hands on Examples
This question is designed to test your knowledge and understanding of sexual offences. Whilst this appears to be a very large area and whilst certain elements of it are quite complex, it is important to remember that many of the key elements are relevant to all of the offences. The result is that although there are numerous offences to learn, large parts of each offence are interchangeable.
- Peter is extremely angry because he has just discovered that his wife, Julie, has been having an affair with his best friend Brian. In order to try to calm down a little, Peter decides to go to the pub. Whilst at the pub, he drinks 12 pints of strong lager and, as a result, becomes extremely drunk. In his drunken state, Peter comes to the conclusion that he is sure that Julie has made a mistake and that all it will take to win her back is for him to show her how much he loves her. In order to show Julie this Peter decides to go home to make love to her.
When he gets home, his wife is asleep. Peter decides to wake Julie up and tell her how he feels. Julie wakes to see how upset Peter is and decides, because she feels sorry for him, to allow him to make love to her for one last time (she intends to move in with Brian the next morning). Peter undresses, climbs into bed and penetrates Julie’s vagina with his penis. After a few minutes, Julie suddenly decides that what she is doing is wrong and says to Peter ‘Stop this now, I do not want you to carry on, get your penis out of me’.
Discuss Peter’s liability for rape if:
- He immediately withdraws his penis.
- He continues to have sexual intercourse with Julie because he believes that if he continues she will see how much he loves her.
- The same situation exists as is set out above except that when Peter gets home he undresses and gets into bed with Julie who is dozing. Peter penetrates Julie’s vagina with his penis. When Julie stirs she says ‘What’s going on’. Peter says, ‘Don’t worry it’s me, Brian. Peter is at the pub and won’t be home for ages’.
Discuss Peter’s liability in this circumstance.
- Peter and Julie’s son, Christopher, is 17-years-old and has been seeing his girlfriend Amanda for 2 months. Amanda is 16 and in the 6th form at school. One evening after a date, Amanda invited Christopher to her house because her parents are out. Whilst at Amada’s house Christopher and her kiss and, because he thinks that Amanda will like it, Christopher pushes his hand between Amanda’s legs and touches her vagina through her jeans. Amanda immediately jumps up and throws Christopher out of the house.
Christopher is arrested the next morning. Consider his liability for sexual assault. How would your answer differ if Amanda had lied about her age and was only 15-years-old?
- Situation 3 did not occur as described and Amanda was happy for Christopher to touch her as he did, although they did not go further than this. The following week Christopher tells Amanda that he is going away. Whilst he is away, Christopher contacts Amanda and suggests that she do something to remind him of why he likes her so much. He suggests that Amanda carries out a striptease over a webcam, so that he can watch it from his location. Amanda agrees, but what she does not know, is that Christopher has invited several of his friends around to watch ‘the show’. Amanda, therefore, does a striptease in front of Christopher and his friends.
Consider Christopher’s liability for any sexual offences.
- The issue in this context is whether Peter rapes Julie. The actus reus of the offence requires penetration of the vagina with a penis – this is clearly satisfied. There can also be no consent. This is clearly not an issue at the start of the sexual activity because Julie expressly allows Peter to penetrate her. The issue arises when Peter is told to stop. Penetration is an ongoing act and therefore, as soon as the consent is withdrawn, the penetration must end. In the first scenario, this occurs and Peter will not be liable for rape. He does not satisfy the actus reus because he only penetrates with consent. When the consent ends, so does the penetration.
The alternative scenario is more problematic because Peter does not remove his penis when told to stop. This means that he satisfies the actus reus of the offence. There is penetration and Julie does not consent to it. The first mens rea element is satisfied in that the penetration is intentional. The second element falls to whether it was reasonable for Peter to believe that Julie consented. Whilst Julie’s actions are slightly conflicting, her words are unambiguous. The fact that Peter genuinely believes that Julie will want him to continue is irrelevant because the question is an objective one. Additionally, the fact that Peter is very drunk is not relevant to what a reasonable person in his circumstances would believe. It seems, therefore, that Peter will not be found to have a reasonable belief in consent.
- When Peter penetrates Julie, she is asleep. This gives rise to the presumption that she does not consent (s 75(2)(a)). The question is whether Peter will be able to rebut this presumption. On the facts this seems unlikely. In order to do so, Peter would need to be able to show that Julie wanted him to penetrate her while she slept. This consideration becomes unnecessary once Peter pretends to be Brian because here he is inducing Julie to consent by impersonating somebody she knows personally (s 76(2)(b)). This presumption of no consent cannot be rebutted and Peter will be liable for raping Julie.
- The actus reus elements of sexual assault (s 3) are satisfied here. It appears that the touching is clearly sexual and even if it is not it certainly may be, with the circumstances making it so. The issue once again is one of consent. It seems that Amanda does not consent to the touching, so the issue is whether Christopher’s belief that she did was a reasonable one. This is clearly a jury question, but it seems possible, given the facts, that somebody in Christopher’s position may have reasonably believed that Amanda was consenting.
The second element in this question touches on the offences against children. These facts fall under section 9 SOA 2003, with the real issue being whether Christopher will be able to raise the defence that he reasonably believed that Amanda was at least 16. Again this is a question of fact, but it seems likely, given how close to 16 Amanda is and the fact that she lied to Christopher, that he might be able to do so.
- This question refers to s 4 SOA 2003 – causing a person to engage in sexual activity without consent. Christopher intentionally causes Amanda to engage in the activity and the activity is clearly sexual. The issue falls to consent. The problem here is that whilst Amanda agreed to the activity, she did not know its true purpose. The facts are similar to R v Devonald and therefore, it seems unlikely that Amanda will not be considered to have consented. Section 76 SOA 2003 applies to this offence and therefore, because Christopher intentionally deceived Amanda as to the purpose of the act, section 76(2)(a) creates conclusive presumption in this respect. In any event, even if this presumption does not apply, it seems extremely unlikely that Christopher would be considered to reasonably believe that Amanda consented.
You will notice from these questions that they mostly focus on consent in various circumstances. This is because this is the largest issue for sexual offence, it being relatively simple to identify the other elements of an offence from the facts. It is important, therefore, that you fully understand the elements of consent as well as learning the other elements of each offence.