C6: Sexual offences

Question 1

What are three difficulties in sexual offence trials?

Answer 1

1. The offences often take place in private - the lack of independent evidence means it is the word of the defendant against the word of the victim.
2. The prosecution must prove both the lack of consent and the lack of reasonable belief in consent. This can be very difficult.
3. Due to the stigma attached to these offences, only a small fraction of sexual offences are actually reported to the police.

Question 2

Where can you find the legislation on sexual offences?

Answer 2

Sexual Offences Act 2003.

Question 3

In what offence is it not required to prove that the victim lacked consent and the defendant lacked a reasonable belief in consent? Provide a statute reference.

Answer 3

s5 SOA 2003 makes it an offence for someone to “intentionally penetrate the vagina, anus or mouth of another person [who is under 13] with his penis”. The fact that the victim consented to the sexual intercourse at hand is completely irrelevant.

Question 4

Where can you find the legislation about consent in sexual offences?

Answer 4

ss74-76 SOA 2003

Question 5

What does s74 SOA 2003 provide?

Answer 5

s74 SOA 2003 provides that: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.

Question 6

What does s75 SOA 2003 provide generally?

Answer 6

The evidential presumptions about lack of consent and lack of reasonable belief in consent. If the prosecution manages to prove that any of the evidential presumptions apply, then it will be for the defence to adduce evidence in order to rebut the presumption established.

Question 7

What does s76(1) SOA 2003 provide?

Answer 7

It includes two conclusive presumptions about lack of consent. If any of the circumstances described in s76(2) existed, then it is to be conclusively presumed that:
- that the complainant did not consent to the relevant act, and
- that the defendant did not believe that the complainant consented to the relevant act”.

Question 8

What are the two circumstances described in s76(2) SOA 2003?

Answer 8

s76(2) 2003 (summarised) says that:
(a) the defendant intentionally deceived the victim about the nature/purpose of act
(b) the defendant intentionally gained consent by pretending to be someone else the victim knew.

(If either of these are established, then s76(1) SOA 2003 will apply (consent will not be presumed to have been given or believed).

Question 9

When only will s76(2) SOA 2003 apply?

Answer 9

When it is the defendant’s intention (either direct or oblique) to deceive the victim.

Question 10

What if the defendant did not intend to deceive the victim? Which section of SOA 2003 will come next?

Answer 10

Then s75 evidential presumptions will need to be examined to see if they apply. If not, then the general definition of consent under s74 should be applied.

Question 11

If the prosecution is able to rely on s76 SOA 2003, then will the defence be able to rebut that presumption?

Answer 11

No, it is a conclusive presumption about consent (as to both AR and MR), so there is nothing the defence can do in order to rebut the presumption.

Question 12

Provide a quick run-down on ss74-76 SOA 2003?

Answer 12

s74: Consent must be freely given.
s75: Evidential presumptions
s76: If the defendant deceives the victim about the nature/purpose of the relevant act, or about their identity, then it will be presumed that the victim did not consent and the defendant did not believe that the victim consented to the relevant act.

Question 13

Define ‘nature’ and ‘purpose’ from s76 SOA 2003?

Answer 13

Nature: misled about the physical aspects of the activity at hand.
Purpose: misled about the reason why the activity at hand takes place.

Question 14

Explain why Williams [1923] is a good example of where the nature and purpose of the act negated consent?

Answer 14

Williams [1923], the defendant deceived the victim, who was 16 years old, into believing that she had to have sexual intercourse with him in order to improve her singing skills. The defendant was charged with and convicted of rape. The defendant appealed unsuccessfully against his conviction with the Court of Criminal Appeal noting that the victim was deceived about the nature and the purpose of the relevant act. Consequently, although the victim consented to the relevant act, their consent was negated by the defendant’s deception regarding the nature and/or purpose of that activity.

Question 15

Can the victim consent to a sexual act and then have their consent negated? How?

Answer 15

Yes, under s76, the victim’s consent is negated if the defendant deceives them about either the nature or purpose of the act, or their identity.

Question 16

Can consent to a sexual act be negated if the victim did not know about an STD that the defendant had?

Answer 16

No, because the victim would have known about the true nature/act and identity, so under s76 SOA 2003, they would not be able to negate consent. They may be liable for a non-fatal offence from OAPA 1861 however.

Question 17

If the defendant refuses and intends not to pay a sex worker for a sexual act, will that deception negate consent?

Answer 17

No, because the sex worker would have known about the true nature/act and identity, so under s76 SOA 2003, they would not be able to negate consent.

Question 18

What is the most important issue when examining the applicability of s76(2)(b) - deceiving the victim about the identity of the defendant.

Answer 18

The need for the defendant to pretend to be someone who is “known personally to the complainant”. E.g. a celebrity who she knows but has never met would not qualify. The true limits of this limb are yet to be determined, but ‘known personally’ can mean spouse, friends, boyfriends/girlfriends.

Question 19

Even if the prosecution could not rely on s76 for deception outside of nature/purpose/identity, what can they rely on as a fail-safe?

Answer 19

s74 - freely having the capacity to make a choice as to giving consent.

Question 20

What are the three conditions that must be satisfied in order for an evidential presumption about lack of consent to be established?

Answer 20

(1) The defendant must do the relevant act, such as penile penetration of the victim’s vagina;

(2) One of the six circumstances listed under s75(2) SOA 2003 existed at the relevant time:
(a) any person used immediately before or during the sexual act violence against the complainant or caused the complainant to fear that immediate violence would be used against him/her;
(b) any person caused the complainant to fear that violence will be used against somebody else;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the relevant time;
(e) the complainant could not communicate consent due to his/her physical disability; or
(f) any person administered or cause the complainant to take a substance, without the complainant’s consent, which was capable of causing the complainant to be stupefied or overpowered at the time of the relevant act.

(3) That the defendant knew that one of the six circumstances listed under s75(2) SOA 2003 existed at the time.

Question 21

If a victim said ‘do whatever you want as long as you don’t hurt me’, does that mean there is consent?

Answer 21

No, due to s75 - out of fear that the defendant will cause them harm.

Question 22

When will consent be valid according to s74?

Answer 22

The victim’s consent will be valid only if they agreed by choice and they had the freedom and capacity to make that choice.

Question 23

If a victim has consented to sexual acts in the past, does that meant they have consent going forward?

Answer 23

No, it does not.

Question 24

What is the two-step test for whether the victim had the required consent?

Answer 24

In order to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to “weigh that information in the balance to arrive at a choice”.

Question 25

What must there be if the victim’s consent is ‘valid’?

Answer 25

In order for the victim’s consent to be “valid”, they must not only have the capacity to “arrive at a choice”, but they must also have the freedom to do so.

Question 26

Give an example of a case where even though the victim agreed to the sexual act, they did not provide valid consent?

Answer 26

In PK [2008], the victim was homeless, hungry and in a desperate situation. On one occasion, the victim was so hungry that she agreed to have sexual intercourse with one of the defendants for £3.25. The victim wanted the money in order to buy some food. According to the Court of Appeal, the victim’s consent was vitiated by her predicament which was exploited by the defendants

Question 27

Where can you find the legislation for rape?

Answer 27

s1(1) SOA 2003.

Question 28

What are the elements to rape?

Answer 28

s1(1) SOA 2003 provides that someone commits rape if he:

intentionally;
penetrates the vagina, anus or mouth of another person;
with his penis; and
the victim does not consent to the penetration; and
the defendant does not reasonably believe that the victim consents.

Question 29

What is the AR for rape?

Answer 29

(i) the defendant must penetrate the victim’s vagina, anus or mouth;
(ii) using his penis; and
(iii) the victim must not consent to the penetration.

Question 30

Where can the definitions of the sexual offences language be found in legislation?

Answer 30

S79 SOA 2003.

Question 31

What does ‘penetration’ mean according to s79 SOA 2003?

Answer 31

“Penetration is a continuing act from entry to withdrawal”. Consequently, there is no need for the penetration to be repetitive or continuing in order for this first prerequisite to be satisfied. it is enough for the defendant to penetrate the outer part of the vagina since s79(9) explicitly provides that “vagina” includes the vulva.

Question 32

Who can commit rape?

Answer 32

Based on the definition of rape under s1(1) SOA 2003, only someone who has a penis can commit rape. Technically therefore only a male can commit rape.

Question 33

What is the difference between s1, s2 and s3 SOA 2003?

Answer 33

s1: Rape with penis
s2: Penetration with anything other than penis
s3: Sexual offence

Question 34

Is consent to penile penetration a subjective or objective test?

Answer 34

It is a subjective test, on whether the victim consented to the penile penetration. What matters is whether indeed the victim (subjectively) consented to the relevant act regardless of any outward signs.

Question 35

Can a husband rape their wife?

Answer 35

No, due to R v R 1992.

Question 36

Explain R v R 1992?

Answer 36

The defendant sought to deny liability relying on a common law exception according to which a husband could not be convicted of rape against his wife because the wife gave her irretrievable consent when the couple got married. The defendant submitted an application to the European Court of Human Rights arguing that the decision violated his rights under Art 7 ECHR which prohibits retrospective criminalisation and therefore the imposition of punishment for something which at the time did not constitute a criminal offence. In dismissing the application, the European Court of Human Rights held that there was no violation of Art 7 ECHR because there was “a perceptible evolution of case law which had reached [that] stage”.

Question 37

What is the MR for rape?

Answer 37

(i) the defendant must intentionally penetrate the victim’s anus, mouth or vagina with his penis; and
(ii) the defendant must lack reasonable belief in the victim’s consent.

Question 38

What type of intention is required for the first part of MR for rape, ‘ the defendant must intentionally penetrate the victim’s anus, mouth or vagina with his penis’?

Answer 38

Either direct or oblique. If it was the defendant’s aim/purpose (i.e. there was a direct intention) to achieve penile penetration of the victim’s anus, mouth or vagina, then this element of the MR will be satisfied. This prerequisite will also be satisfied even if the defendant accidentally (or recklessly) penetrated with his penis the victim’s anus rather than her vagina as intended.

Question 39

How linked are the second element of MR for rape ‘the defendant must lack reasonable belief in the victim’s consent’ and whether or not the victim subjectively consented to the sexual intercourse at hand?

Answer 39

Not at all, this is MR whereas the victim’s subjective consent is AR.

Question 40

How could a defendant avoid the charge of rape?

Answer 40

If they reasonably (but mistakenly) believed that the victim consented.

Question 41

Does s 75-76 SOA 2003 apply to the AR and MR of rape?

Answer 41

It is also important to remind ourselves that ss75–76 SOA 2003 work for both the AR and the MR. Consequently, if, for example, the prosecution was able to establish a conclusive presumption about lack of consent (s76), then they will automatically establish lack of reasonable belief in consent.

Question 42

What was different about pre-2003 legislation about rape?

Answer 42

Prior to the 2003 legislative amendments the defendant could avoid liability for a sexual offence requiring non-consent if they honestly (but unreasonably) believed that the victim consented to the relevant act

Question 43

What must the belief of consent be in order to be acceptable (post-2003 and SOA 2003)?

Answer 43

All offences requiring non-consent explicitly provide that the defendant’s belief in consent must be reasonable.

Question 44

Is the test for finding out whether the defendant had sufficient belief in the victim’s consent, objective or subjective?

Answer 44

It is objective. It is for the jury to decide whether the defendant’s belief in consent was unreasonable. To this end, the jury must consider whether a reasonable person with the defendant’s characteristics would have believed that the victim consented.

Question 45

When applying the objective test to whether or not the defendant believes in the consent of the victim, how will intoxication be taken into account?

Answer 45

It likely won’t be taken into account. Most probably, the jury will be instructed to consider whether a reasonable and sober person in the defendant’s position would have believed in the victim’s consent.

Question 46

How will learning difficulties be taken into account when assessing the reasonableness of their belief in the victim’s consent?

Answer 46

They’ll be considered when deciding whether it was reasonable or not.

Question 47

How should sexual offences be approached when examining a defendant’s liability for rape?

Answer 47

When examining a defendant’s liability for rape, it is really important to discuss every single element of the offence despite the fact that it is evident from the outset that not every prerequisite will be satisfied. The importance of this lies in the fact that the defendant might still be liable for another offence.

Question 48

What does s3 SOA 2003 cover?

Answer 48

s3 SOA 2003 covers a range of behaviour ranging from mere touching of the victim’s clothes to the penetration of the victim’s mouth with any part of the defendant’s body other than their penis (s2 SOA 2003 does not cover cases where the defendant penetrates the victim’s mouth with any part of their body (other than their penis) or anything else).

Question 49

What are the elements of sexual assault?

Answer 49

In particular, s3 SOA 2003 makes it an offence for someone to:

intentionally;
touch another person;
the touching must be sexual;
the victim does not consent to the touching; and
the defendant does not reasonably believe that the victim consents.

Question 50

What is the AR of sexual assault?

Answer 50

The AR of s3 SOA 2003 will be satisfied if the defendant:
(i) touched the victim;
(ii) the victim was sexual; and
(iii) the victim did not consent to the touching.

Question 51

What does s79 SOA 2003 define as ‘touching’?

Answer 51

s79(8) SOA 2003 provides that “touching includes touching –

with any part of the body,
with anything else,
through anything,

and in particular includes touching amounting to penetration”.

Question 52

Does the victim need to apprehend immediate and unlawful personal violence in order to establish liability for this offence?

Answer 52

No, they do not. This is different to common assault.

Question 53

Does the victim need to realise that the defendant made physical contact with them in order to charge for sexual assault?

Answer 53

No, there is no need for the defendant to touch the victim’s body directly in order for this to satisfy the conduct element of sexual assault. The courts have held that “It was not Parliament’s intention to preclude the touching of a victim’s clothing from amounting to a sexual assault”.

Question 54

What distinguishes sexual assault from battery?

Answer 54

In most cases, what really distinguishes battery (i.e. common assault) from sexual assault is that the physical contact at hand was sexual.

Question 55

According to s78 SOA 2003, what is considered ‘sexual’?

Answer 55

TLDR: the circumstances under which it took place and/or due to the defendant’s purpose in relation to it.

s78 SOA 2003 provides that “penetration, touching or any other activity is sexual if a reasonable person would consider that –

(s78(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(s78(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”.

E.g. Taking off someone’s shoes due to a foot fetish will be the defendant’s purpose in relation to it.

Question 56

What is the MR of sexual assault?

Answer 56

The MR of s3 SOA 2003 will be satisfied if:
(i) the touching was intentional; and
(ii) the defendant lacked reasonable belief in consent. The MR of s3 SOA 2003 is almost identical to that of rape and therefore the same rules and principles apply.