#4620 - Sexual Offences - GDL Criminal Law

• Until 2003 sexual offences were governed by the Common Law

• Sexual Offences Act 2003 (SOA) - meant to be all-encompassing code

  • Aim of legislation was the difficulties in prosecuting defendants for rape

    • Conviction for cases that go to trial – 71% in 2010 (21% in 2002)

• Created over 50 crimes – but only need to know 4

1. Rape – S1

2. Assault by penetration - SOA s2

3. Sexual Assault – SOA s 3

4. Causing a person to engage in sexual activity without consent – SOA s 4

1. Rape

AR

• Penetration by the penis into the vagina, anus or mouth (see S79)

  • Provision in s79 – Penetration is a continuing act from penetration to withdrawal – if the claimant changes their mind during then it can still be rape even thought they consented when it was put in

“Consent”

• Prosecution must prove that they defendant did not consent

1. Section 74 defines consent

   • S74 – person consent if they agrees by choice and has the freedom and capacity to choose

• Freedom to make the choice

  • R v Jheeta: They were in a relationship –girl was considering ending the relationship – she was receiving threatening messages – told Jheeta – she said that he would protect her and tell the police – the ‘police’ then started sending her messages too – said she would be liable to a fine if she didn’t stay with her boyfriend

    • All the messages in fact came from Jheeta – plot to stop the girl from breaking up with him

    • She eventually went to the police and they had never heard about it

    • Investigation went back to Jheeta

    • CA asked to address whether the sex they had had been consensual – court said that she had not had any freedom to choose so there was no consent

• Capacity to choose

  • R v Bree –

    • D (Bree) was visiting his brother at University – he took a girl home at the end of the night – she was sick upon opening the door. She claimed that her next memory was of her being on the bed with him on top of her – she claimed that she didn’t consent.

      • Bree claimed that she had consented - that she perked up after being sick and was lucid throughout

      • Diametrically opposed evidence

    • CA: drunken consent is still consent – but equally someone can be so drunk that they lack the capacity to consent

      • ‘capacity to consent may evaporate well before a complainant becomes unconscious Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind if the individuals involved on the particular occasion’

      • Drunkenness is problematic!

• Basic rule in S74 backed up with evidential presumptions (s75) and conclusive presumptions (s76)

2. Evidential presumptions – s 75

• Prosecution must prove D did the relevant act –s 75 (1)(a) “relevant act” defined in s77 = penetration

• Must prove that one of the circumstances giving rise to the presumption existed at the time of the act – s75(1)(b)

• Lack of consent then presumed unless D raises an issue to indicate consent may have been given

• 6 circumstances listed in S75(2)

1. Use/threat of violence on complainant by anyone – at the time of/immediately before

2. Use threat of violence on a third party by anyone

3. Complainant unlawfully detained

4. Complainant asleep/unconscious:

   • R v Bree: Presumption applies if the V is so drunk that they are asleep / unconscious

   • R v Ciccarelli: Independent evidence claimed that the V had been so drunk she was falling asleep at the party

5. Complainant unable to communicate due to physical disability

6. Substance administered to complainant by anyone that could stupefy/overpower the complainant: substance doesn’t have to be administered by the defendant; don’t have to prove that it did have an effect – but that it could; hard to prove as date-rape drugs don’t stay in the system v. long

3. Conclusive presumptions

• Prosecution must prove that one of the circumstances giving rise to the presumption exist

• Lack of consent presumed – no other conclusions – D cannot rebut this (S76 (1)(a))

1. D deceives complainant as to nature/purpose of the act

   • R v Williams, R v Flattery: Flattery told his victim that he was going to perform an operation – Williams was a singing teacher who offered singing help- neither claimants really knew what sex was - deception as to the nature of the act (old law) - but cases show limitations of ‘nature’ of the act:

   • R v Linekar: D promised prostitute 25 – had sex with her then refused to pay – convicted for deception of the nature – but this was overturned –nature was not in question

   • So - now we have deception as to the nature OR purpose

     • What does this change?

• R v Jheeta: Discussion of nature/purpose – judge said that Linekar would still have been acquitted – and that the presumptions will only be used in very clear cut cases, rarely going to the purpose/nature of the act

• What does ‘purpose’ add? – R v SD- SD was a father who was annoyed with a boy who had broken up with his 16 year old daughter. To get revenge the father created an online persona and persuaded the boy to masturbate in front of a webcam – here the CA agreed there was deception as to the purpose of the act (distinguishing Linekar) as here the purpose of the act was not sexual in the D’s mind but was to humiliate the C

b) D induces consent by impersonating someone known to the complainant: S76(2)(b)

• R v Elbakkay: convinced girl that she was having sex with her boyfriend

  • But must be someone they know – not rape if you convince someone you’re George Clooney and then have sex with them

MR

• You must intend to penetrate

• A reasonable belief in consent - S1(1)(c) – makes it clear that if D believes they consented this will only be valid if it was a reasonable belief

• In deciding whether it was reasonable – must take in all evidence, including steps taken to confirm consent: S1(2)

• Where evidential and conclusive presumptions (S75/76) apply –there will be 2 presumptions (1) that there was no consent (2) that D didn’t reasonably believe in consent

• Prosecution must also prove that the D was aware or the relevant circumstances (s75(1)(c))

• For S76(2) (a) and (b) – must prove that D intentionally deceived the V

2. Assault by Penetration - SOA s2

AR

• Penetration with any part of body or anything else – into vagina or anus

• Only a man can commit rape but S2 can be committed by man/woman

• Act must be sexual

• Lack of consent: same issues as for rape

Penetration MUST be “sexual”:

• Test is in S78:

‘For the purpose of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that –

1. Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

2. Because of its nature it may be sexual and because of its circumstances or he purpose of any person in relation to it (or both) it is sexual

• Test was from R v Court: D pulled a 12 year old boy over his knee and hit her 12 times on the bottom, over her shorts

  • HL: objective approach to ‘indecent’ (and now to ‘sexual’)

• Whether or not an act is sexual is a question for the jury (S78 (a)) – jury will consider whether a reasonable person would regard the nature of the penetration as sexual irrespective of the D’s purpose

  • 78 (a) conduct is sexual if it has a sexual nature even if this is not the primary purpose of the D

  • 78 (b): situations where the activity is ambiguous as to its sexual nature

    • Jury will consider the circumstances and/or purpose of the D in deciding

      • R v H : CA held that where touching was not inevitably sexual by nature then S78(b) applied – same interpretation of ‘sexual’ to apply for penetration offences

      • Can identify 2 distinct questions for the jury

1. Whether the act could be sexual – and if yes;

2. Whether in the circumstances - the touching was in fact sexual – if yes then D is guilty, if not he is not guilty

   • R v George: foot-fetish - took shoes off women – court concluded that it was not sexual – somebody observing the act wouldn’t say that it was sexual – just weird – not obviously sexual or even possibly sexual – cannot turn an ambivalent act into a sexual one purely on the basis of its purpose – must objectively be able to see that it is sexual or could be sexual

MR

• Intentional penetration

• No reasonable belief in consent (same issues as for rape)

3. Sexual Assault – S3

• Situations which are less than penetration but still amount to sexual assault

AR

Touching

• S79(8) – touching any part of the body, with or through anything

  • R v H : touching the pocket of tracksuit bottoms

  • R v Mills: touched breasts v. quickly – merest touch is enough

Touching must be sexual (Same meaning as above)

• See S 78 above – same understanding of ‘sexual’

Absence of Consent (Same meaning as above – S 3(3) specifically states that ss 75 and 76 apply to sexual assault

MR

Intentional touching

• Must prove that the act was intentional but not that the D intended it to be sexual

Absence in a reasonable belief in consent

• As with rape and assault by penetration - See S 3(2)

4. Causing sexual activity without consent - S 4

• New offence – maximum sentence of 10 years unless S 4(4) applies and then max is life imprisonment

• Five elements that the prosecution needs to prove (some have been discussed already above)

AR

Causing a person to engage in an activity

• Situations where the D forces the C to engage in a sexual act vs. their wishes

• Useful for convicting parties to a group rape (particularly females) as principals rather than accessories

• C must be ‘caused’ to engage in the activity:

  • must be established in both fact and law –must be a factual link btw the D’s act and the prohibited harm (R v White) – but the D’s...