Assault Flashcards
What is assault by penetration?
Sexual Offences Act 2003, s2
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents
What is the sentence for assault by penetration?
Triable on indictment
Life imprisonment
What body parts does the penetration have to be by?
This offence involves penetration by any part of the body or anything else whatsoever (eg: finger, tongue, sex aid, bottle, living creature etc…).
What body parts have to be penetrated?
Covers the insertion into the vagina or anus (though not the mouth) of anything, provided that the penetration is ‘sexual’.
CANNOT BE THE MOUTH
Who can commit sexual assault by penetration?
It is gender neutral and can be committed by anyone of any gender.
Can the evidential presumptions be applied to this offence- s75 and s76?
Yes- both apply.
What is the definition of the term ‘sexual’?
s78 2003 Act- defines the term sexual and provides that penetration, touching or any other activity will be sexual if a reasonable person would consider that:
(a) whatever its circumstances or any person’s purpose in relation to it, it is sexual by its very nature; or
(b) because of its nature, it may be sexual and, because of its circumstances or the purpose of any person in relation to it, it is sexual
What do (a) and (b) mean?
(a) covers things that a reasonable person would consider to be sexual (eg: masturbation and penetration by the penis)
(b) covers things that may or may not be considered sexual by a reasonable person depending on the circumstances or the intentions of the person carrying it out or both (eg: doctor in surgery/undertaking medical procedure and getting sexual gratification from it)
If the activity would not appear to a reasonable person to be sexual at all, then it will not meet either criterion and, irrespective of any sexual gratification the person might derive from it, the activity will not be ‘sexual’
Does this cover weird or exotic fetishes?
Therefore weird or exotic fetishes that no ordinary person would regard as being sexual or potentially sexual will not be covered- (R v Court [1989] and R v Tabassum [2000]).
Unusual fetishes that are outside the understanding of reasonable people would not be regarded as fetishes eg: foot fetish of a shoe shop owner
What offence is excluded from the definition of sexual?
It applies to all offences under Sexual Offences Act where this term is used, excluding:
- Sexual activity in a public lavatory (under s71)
- Sexual communication with a child (under s15A)
Both of these have their own definitions
What about a non-consensual unwanted kiss where D forces his tongue into the mouth of V?
This could not be s2 offence, it has the potential to fall under s3 of the offence- sexual assault.
What is sexual assault?
Sexual Offences Act 2003, s3
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents
What is the sentence for sexual assault?
Triable either way
10 years’ imprisonment on indictment
What is the definition of ‘touching’?
s79(8) states that touching includes:
- with any part of the body;
- with anything else
- through anything
- and in particular, touching amounting to penetration (this could include kissing)
Can touching a person’s clothing be touching?
Touching for the purposes of the above offence includes touching a person’s clothing while they are wearing it. Therefore, where a man approached a woman and asked ‘Do you fancy a shag?’, grabbing at a pocket on her tracksuit bottoms as she tried to walk away, he was properly convicted of the s. 3 offence even though he did not touch her person (R v H [2005])
Can the touching be reckless, or just intentional?
The conduct must be intentional (rather than reckless or accidental). It also has to be sexual.