Other Sexual Offences Flashcards
Sex with an Adult Relative: Penetration—Sexual Offences Act 2003, s. 64
- Triable either way
- Two years’ imprisonment on indictment
- Six months’ imprisonment and/or a fine summarily
The Sexual Offences Act 2003, s. 64 states:
(1)
A person aged 16 or over (A) (subject to subsection (3A)) commits an offence if
(a)
he intentionally penetrates another person’s vagina or anus with a part of his body or anything else, or penetrates another person’s mouth with his penis,
(b)
the penetration is sexual,
(c)
the other person (B) is aged 18 or over,
(d)
A is related to B in a way mentioned in subsection (2), and
(e)
A knows or could reasonably be expected to know that he is related to B in that way.
Sex with an Adult Relative: Consenting to Penetration—Sexual Offences Act 2003, s. 65
- Triable either way
- Two years’ imprisonment on indictment
- Six months’ imprisonment and/or a fine summarily
The Sexual Offences Act 2003, s. 65 states:
(1)
A person aged 16 or over (A) (subject to subsection 3A)) commits an offence if—
(a)
another person (B) penetrates A’s vagina or anus with a part of B’s body or anything else, or penetrates A’s mouth with B’s penis,
(b)
A consents to the penetration,
(c)
the penetration is sexual,
(d)
B is aged 18 or over,
(e)
A is related to B in a way mentioned in subsection (2), and
(f)
A knows or could reasonably be expected to know that he is related to B in that way.
Sex with an Adult Relative
For either offence to be committed, the penetration must be ‘sexual’. This requirement ensures that a penetration for some other purpose, for example where one sibling helps another to insert a pessary for medical reasons, is not caught by this offence.
A ‘relative’ for ss. 64 and 65 is a parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
The Criminal Justice and Immigration Act 2008 amended ss. 64 and 65 so that the offences of sex with an adult relative are committed where an adoptive parent has consensual sex with their adopted child when he/she is aged 18 or over.
The adopted person does not commit this offence unless he/she is aged 18 or over.
In both offences, where the relevant relationship is proved, it will be taken that the defendant knew or could reasonably have been expected to know that he/she was related in that way unless sufficient evidence is adduced to raise an issue as to whether he/she knew or could reasonably have been expected to know that he/she was so related.
Possession of Extreme Pornographic Images
This offence covers a more limited range of material than the Obscene Publications Act. It creates a possession offence in respect of a sub-text of extreme pornographic material which is defined in s. 63 of the Criminal Justice and Immigration Act 2008.
An ‘extreme pornographic image’ is an image which is both pornographic and an extreme image. An image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Section 63(4) and (5) provides that where an image is integral to a narrative (e.g. a documentary film) which taken as a whole could not reasonably be assumed to be pornographic, the image itself may be taken not to be pornographic even though if considered in isolation the contrary conclusion would have been reached.
An ‘image’ means either still images (such as photographs) or moving images (such as those in a film). The term also incorporates any type of data, including that stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device.
The scope of the definition of image is also affected by the requirement that the persons or animals portrayed in an image must appear to be real. Therefore animated characters, sketches, paintings and the like are excluded (s. 63(8)).
References to parts of the body include body parts that have been surgically constructed (s. 63(9)). Section 64 of the Act provides an exclusion from the scope of the offence under s. 63 for classified films (by the British Board of Film Classification). Proceedings cannot be instituted without the consent of the DPP.
Possession of Extreme Pornographic Images—Criminal Justice and Immigration Act 2008, s. 63
- Triable either way
- Three years’ imprisonment on indictment and/or a fine (where the images contain life-threatening acts or serious injury)
- Two years’ imprisonment on indictment and/or a fine (where the images contain acts of necrophilia or bestiality)
- Six months’ imprisonment and/or a fine summarily
The Criminal Justice and Immigration Act 2008, s. 63 states:
(1)
It is an offence for a person to be in possession of an extreme pornographic image.
There are three elements to the offence. An image must come within the terms of all three elements before it will fall foul of the offence. Those elements are:
- that the image is pornographic;
- that the image is grossly offensive, disgusting or otherwise of an obscene character; and
- that the image portrays in an explicit and realistic way, one of the following extreme acts:
- an act which threatens a person’s life (this could include depictions of hanging, suffocation or sexual assault involving a threat with a weapon);
- an act which results in or is likely to result in serious injury to a person’s anus, breasts or genitals (this could include the insertion of sharp objects or the mutilation of the breasts or genitals);
- an act involving sexual interference with a human corpse (necrophilia);
- a person performing an act of intercourse or oral sex with an animal (whether dead or alive) (bestiality);
- an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis;
- an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else;
and a reasonable person looking at the image would think that the people and animals portrayed were real.
General Defences
Several defences to the offence are set out in s. 65 of the Act. They are:
- that the person had a legitimate reason for being in possession of the image; this will cover those who can demonstrate that their legitimate business means that they have a reason for possessing the image;
- that the person had not seen the image and therefore neither knew, nor had cause to suspect, that the images held were extreme pornographic images; this will cover those who are in possession of offending images but are unaware of the nature of the images; and
- that the person had not asked for the image—it having been sent without request—and that he/she had not kept it for an unreasonable period of time; this will cover those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it.
Defence: Participation in Consensual Acts
Section 66 of the Act provides an additional defence for those who participate in the creation of extreme pornographic images. The defence is limited and will not cover images relating to bestiality and necrophilia images that depict a real corpse.
To use the defence, a defendant must prove (on the balance of probabilities) that he/she directly participated in the act or acts portrayed in the image and that the act(s) did not involve the infliction of non-consensual harm on any person. Where the image depicts necrophilia, the defendant must also prove that the human corpse portrayed was not in fact a corpse. Non-consensual harm is harm which is of such a nature that, in law, a person cannot consent to it being inflicted on him/herself, or harm to which a person can consent but did not in fact consent.
