#3094 - Sexual Offences - GDL Criminal Law

Introduction – Sexual Offences Act 2003

- Sexual Offences Act 2003: came into force 1 May 2004.

• radical reform: repeals almost all old law on sexual offences; new offences created; old offences redefined + extended.

  • old law inadequate: ‘archaic, incoherent and discriminatory’ – [David Blunkett] in 2002 White Paper Protecting the Public.

  • reasons: modernize law; lay down clear, coherent framework; make offences gender-neutral.

    • + public concern: low conviction rate for rape.

• relatively untested: statutory interpretation needed for many areas.

- Problem: low conviction rate for rape – difficult to prove.

• conviction rate for reported cases: 1977 – 32%; 2002 – 5.6%; 2010 – 19%.

  • many cases dropped before trial: by complainant, by CPS.

• conviction rate for cases going to trial: 2002 – 21%; 2010 – 71%.

• but still difficult to prove: forensic ev. can prove sex but not lack of consent; often complainant + defendant have past sexual history.

Rape – s1 Sexual Offences Act 2003

Actus Reus

- Penetration of vagina, anus or mouth with a penis.

• penetration:

  • s79(2): ‘continuing act from entry to withdrawal’ consent given at time of entry can be withdrawn, person penetrating liable if penetration continues.

  • slightest degree sufficient: s79(9): vagina inc. vulva.

• penile: penetration with any other part of body or object NOT rape – may be covered by assault by penetration (s2).

  • inc. surgically constructed penis: s79(3).

• who may be liable?: ‘a person’.

  • man: clearly liable if all elements satisfied.

  • woman: generally NOT guilty of rape if forces man to have sex with her (instead: s3 or s4).

    • but: may be accessory to rape (DPP v K and B [1997]).

  • husband liable for raping wife: R v R [1991] – previously: consent by marriage.

  • transsexuals: s79(3) – penis inc. surgically constructed penis.

• victim: ‘person’ – can be man, woman or s79(3): transsexual.

- Absence of consent: under definition (s74) or statutory presumptions against consent (s75 + s76).

• a. s74: definition: new law – previously undefined: R v Olugboja [1982].

  • agreement by choice: positive agreement not just lack of protest/resistance.

    • R v Larter [1995]: victim apparently asleep still rape: lack of protest insufficient.

    • R v Malone [1998]: victim intoxicated – did not consent.

  • freedom to make the choice: i.e. not under threat of violence.

    • range of threats unclear: R v Olugboja [1981]: not limited to force, fear or fraud (old).

    • R v Jheeta [2007]: d. faked threatening messages to pressure v. to have sex with him no choice.

  • capacity to make the choice: ability to understand issues + implications of consent – inc. victims too young or mentally incapable.

    • capacity not defined in Act: unclear how courts will approach.

    • intoxicated consent: R v Bree [2007]: v. + d. both voluntarily drunk.

      • subjective: dep. on ‘actual state of mind of the individuals’.

      • practical reality: capacity may evaporate before unconsciousness.

      • evidential problem: often no independent evidence.

      • further reform: danger of ‘patronising interference’.

• b. s75: evidential (rebuttable) presumptions

  • presumptions: (i) complainant did not consent; (ii) d. did not reasonably believe complainant consented.

  • for presumptions to apply, prosecution must prove: s75(1)

    • d. did relevant act: s75(1)(a) (relevant act: s77 – for rape: penetration)

    • 1 of circumstances in s75(2) existed at time of act: s75(1)(b).

      • N.B. no requirement that circumstances in s75(2) caused lack of consent.

    • d. aware that those circumstances existed: s75(1)(c).

  • rebuttable: d. must adduce ‘sufficient evidence’ to raise issue over consent/reasonable belief.

    • burden of proof still on prosecution: once d. raises issue, must disprove – s75(1).

    • but in practice: difficult to rebut – circumstances powerful.

  • s75(2): circumstances giving rise to presumption.

    • (a) threat of violence vs. complainant by anyone – at time or immediately before.

      • violence: undefined in Act; rebuttable: e.g. sado-masochism.

    • (b) threat of violence vs. another by anyone – at time or immediately before.

      • other person: no relationship required with complainant, but harder to rebut if so.

    • (c) complainant unlawfully detained (+ d. not).

      • rebuttable: detained person still has some capacity to make decisions.

    • (d) complainant asleep/unconscious.

      • rebuttable: e.g. where woman consents in advance to penetration while asleep.

    • (e) complainant physical disabled unable to communicate consent.

      • rebuttable: d. not aware of disability or fact that this prevented communication.

    • (f) substance administered to complainant by anyone without consent that was capable of stupefying/overpowering complainant.

  • application:

    • R v Olugboja: (old case) d. had not directly threatened violence but friend had sufficient to negative consent.

    • R v Bree: voluntarily intoxication presumptions do not apply (but capacity issue).

• c. s76: conclusive (irrebutable) presumptions

  • presumptions: (i) complainant did not consent; (ii) d. did not believe complainant consented.

  • for presumptions to apply, prosecution must prove: s76(1)

    • d. did relevant act (relevant act: s77 – for rape: penetration).

    • 1 of circumstances in s76(2) existed: no requirement that caused lack of consent.

  • irrebutable: if circumstances exist, lack of consent always presumed – s76(1)(a)

  • s76(2): circumstances giving rise to presumption.

    • (a) d. intentionally deceived v. about nature or purpose of relevant act.

      • R v Flattery [1877]: d. told v. he was performing surgery on her consent negated.

      • R v Williams [1923]: d. (singing teacher) told v. penetration was breathing exercise consent not valid.

      • R v Green [2002]: doctor wired young men to monitors while they masturbated on pretense of assessing potential for impotence.

      • stringent test: not just any deception.

        • R v Linekar: man failed to pay prostitute NOT deception as to nature: financial motive secondary.

        • R v EB [2006]: lied about HIV status – only as to attribute, NOT nature.

        • R v Jheeta [2007]: d. faked threats + texts from police to v. to trick her NOT deception as to nature/purpose (but s74: no choice).

          • + R v Linekar confirmed: still not guilty under new law.

      • R v SD [2008]: d. created fake online persona to trick daughter’s ex-boyfriend into masturbating in front of webcam to humiliate deception as to purpose.

    • (b) d. intentionally induces consent by impersonating someone known to v.

      • R v Elbekkay [1995]: d. had sex with v. who thought he was her boyfriend.

      • R v SD: poss. to impersonate someone known online? argument not addressed because court decided on s76(2)(a).

Mens Rea

- Intention as to penetration: unlikely to be issue – accidental penetration v. rare.

- Absence of reasonable belief in consent: s1(1)(c).

• can be presumed: if s75 or s76 apply.

• reasonable belief : s1(2) – having regard to all circumstances, inc. steps taken by d. to check.

  • burden on prosecution – but in practice: onus on d. to prove took sufficient steps.

• cf. pre-SOA 2003: DPP v Morgan [1976]: genuine belief sufficient in law, need not be reasonable.

  • but: change not v. fundamental – reasonableness evidence of honesty of mistake.

    Assault by penetration – s2 Sexual Offences Act 2003

    Actus Reus

    - Penetration of vagina or anus with a part of the body or anything else

• overlap with rape: penis is part of body covers situation where v. unsure whether penetration was by d.’s penis or another part of body (s2: same maximum penalty).

• penetration: same def. as above; but: oral penetration insufficient.

- Penetration must be ‘sexual’: def. in s78 – objective test.

• s78(a): by nature sexual, whatever circumstances.

  • R v H [2005]: (re: sexual assault) i.e. no possible explanation for the act other than sexual.

• s78(b): by nature ambiguously sexual + is sexual by circumstances and/or d.’s purpose.

  • R v H: applies when touching not inevitably sexual.

  • inc. secret sexual motive: e.g. R v George [1956]: d. removing shoes because of foot fetish.

• based on old law: R v Court [1988]: objective test for ‘indecent’ (indecent assault sexual assault).

- Absence of consent: same meaning as with rape; s2(3): s75 + s76 apply.

Mens Rea

- Intentional penetration: intention must be proved, but not that d. intended it to be sexual.

- Absence of reasonable belief in consent: s2(2) – same meaning as with rape.

Sexual assault – s3 Sexual Offences Act (new offence)

Actus Reus

- Touching: def. in s79(8).

• s79(8): inc touching with any part of body, with anything else, through anything + inc. penetration.

  • N.B. mere assault not enough, despite title of offence.

• R v Mills [2003]: merest touch sufficient.

• R v H [2005]: touching inc. touching of v.’s clothing.

  - Touching must be ‘sexual’: def. in s78 – objective test (see above).

- Absence of consent: same meaning as above; s3(3): s75 + s76 apply.

Mens Rea

- Intentional touching: intention must be proved, but not that d. intended it to be sexual.

- Absence of reasonable belief in consent: s3(2) – same meaning as above.

Causing sexual activity without consent – s4 Sexual Offences Act (new offence)

Actus Reus

- Causing a person to engage in an activity

• purpose: situations where d. forces v. to engage in sexual act against wishes.

  • e.g. d. forces v. to have sex with d. or another, or to masturbate.

  • useful: parties to group rape (particularly females) can be convicted as principals rather than accessories.

• cf. pre-SOA 2003: R v Sergeant [1997]: d. forced boy to masturbate into condom indecent assault (old offence).

  • now: would NOT be sexual assault (no touching) but would fall under s4.

• causation: factual + legal....