Assualt By Penetration

Question 0

Prior law

Answer 0

Lack of measurement of seriousness in the law because if an offence was short of rape it was just classified as indecent assault, however the new law of assault by penetration plus sexual assault and rape classifies the seriousness of the offences more efficiently and adequately to Ds blame worthiness

Question 1

S2(1)

Answer 1

A person commits an offence if he:
A) intentionally penetrated the vagina or anus of another person with part of his body or anything else
B) the penetration is sexual
C) B doesn’t consent to penetration
D) a doesn’t reasonably believe that B consents

Question 2

Seriousness compared to rape

Answer 2

Debates non penile penetration to being just as serious as rape

Question 3

Comparison with rape

Answer 3

The offence is narrower than rape because it only involves penetration of the vagina and anus not the mouth yet it can also be seen as wider because it is not limited to penile penetration so can be committed by both female and male defendants

Question 4

Actus Reus

Answer 4

• non penile sexual penetration of the vagina or anus

- absence of Bs consent

Question 5

Men’s rea

Answer 5

Intentional penetration

A lack of reasonable belief in Bs consent

Question 6

Sexual

Answer 6

Only unexplored element
S78 - penetration, touching or other activity is sexual if a reasonable person would consider that
- whatever it’s circs or any persons purpose in relation to it, it is because if it’s nature sexual or
- because of its nature it may be sexual because of its circumstances of the purpose of any person in relation to it

Question 7

H [2005] 1 WLR 2005 CA

Answer 7

The court provided a two stage test when touching is not of its nature sexual:

• would the jury as 12 reasonable people consider that the touching could be sexual ?
• whether the jury as 12 reasonable people and in all the circumstances of the case would consider that the purpose of the touching had in fact been sexual?

Question 8

Examples of conduct which has been held to be sexual include

Answer 8

• Grabbing a packet of vs tracksuit bottoms (H [2005])
• Kissing Vs face (W[2005] EWCA Crim 3138)
• d rubbing his penis on Vs body (Osmani [2006] EWCA Crim 816)
• touching vs breasts (Burns [2006] EWCA Crim 1451)