sexual abuse Flashcards
what is section 2
assault by penetration
what is section 3
assault of a child under 13 by penetration
what is section 5
sexual assault
what is section 7
sexual assault of a child under 13
S3(1) SOA 2003 - a person commits an offence if
- He intentionally touches another person
- The touching is sexual
- V does not consent to the touching
- D does not reasonably believe that B consents
punishment
- Committing an offence under S3 is a triable either way offence
- The maximum punishment is 10 years imprisonment
- A punishment of up to ten years is a significant amount, the seriousness of assaults should not be disregarded
- The amount of trauma, degradation and fear they can cause in a victim mean that this punishment is weighted towards the care of the victim
what does S3(1) mean by touch
touching:
- With any part of the body
- With anything else
- Through anything
touching or battery?
- There is a requirement that the touching is in some way sexual, as there is a big gap between a battery and assault
- Sexual assault covers a wide range of touching that replaces the more exclusionary offence of indecent touching
with/without consent
- Straightforward but the touching must be without the consent of the V
- Where touching can be consented to within the realms of battery (busy areas etc) it is inconceivable that someone would impliedly consent to being sexually touched
hostility
• There is no hostile intent or force required with this touching – merely touching someone sexually when they do not consent to it is sufficient
consent and SA
- As well as intentionally touching the complainant, the D must also not be able to reasonably believe that the complainant has consented to the sexual touching
- Reasonableness is assessed considering all circumstances and any steps the D took to assess consent
reasonableness
- This is an objective test, which asks juries or magistrates to ask whether the belief was reasonable, regardless of honesty
- This removes previous law, which seemingly allowed for mistakes of understanding
R v Bounekhla 2006
• The victim does not need to be aware that they are being touched for there to be a sexual assault, nor does the V’s body need to be touched – it is sufficient for clothing to be touched
underage sexual activity
- Within the UK, the age of consent to any sexual activity is 16 years old
- In Holland, it is 12 years old – although different if there is a considerable age gap between parties
- In Iran it is 12, recently raised from 9
- In Germany and some US states it is 14
- In Dubai, it is unlawful at any age unless married
before SOA 2003
- Before the current law was enacted, there were myriad sexual offences concerning both those done to children, y adults and those done between underage individuals
- When the SOA came into force, it was decided the former should be criminalised heavily and the latter less serious – while remaining an offence
age of 16
- When considering the issue of consent and when someone is a child when regarding sexual offences, we need to look at the age of 16
- This is applicable to all sexual activity – interestingly in the 1990’s the age of consent for homosexual activity was 21
S9(1) a person aged 18 or over commits an offence if..
He intentionally touches another person
b) The touching is sexual, and
c) Either
d) V is under 16 and D does not reasonable believe that B is 16 or over, or
e) B is under 13
seriousness of touching
- The nature of touching means that some methods are taken more seriously than others
- However, there is no ‘lowest amount’
- If the touching is of a sexual nature, then it will be criminalized
- Note: if the V is under 16, their consent is actually irrelevant
- The touching in these cases, must also be intended
what if they are under 18
- The above statute commented on those aged 18 or above
- But if the same offence is committed by an under 18-year-old, it is charged under s13 and involved a maximum of 5years imprisonment
- For those 18+ the maximum penalty is 14 years imprisonment under S9
position of trust
- However, the age of consent can change depending on the scenario
- If the adult holds a position of trust such as in a school or warden in a YOI, the relevant age of consent is actually 18
- Therefore, the consent of a 16 or 17 year old would be as irrelevant as that of a under 16 year old in a ‘normal’ scenario
both under 18
- So, what if there is consensual sexual activity between a 15yr old and 16 yr old? Two 15yr olds?
- While technically an offence (if it was reported)it is more likely to be deal w/by social services as it is not in the public interest
S1 protection of Children act 1978 makes it an offence
- To take, or permit to be taken or to make any indecent photograph or pseudo-photograph of a child
context of indecent photographs of children
- The absolute lower age limit of the subject in relation to photographs of any indecent nature is 18 – for it to be lawfully distributed or produced
- ‘Hardcore’ pornography where all are 18+ is legal subject to restrictions
- ‘Softcore’ pornography is unrestricted (18+)
- Note: extreme pornography including violence has recently been outlawed and is no longer permitted to be produced in the UK
creation vs possession
- S1 PCA 1978 relates to those who make or publish the material
- Those who possess or view this material are far more likely to come to police notice, and this is dealt with under s160 (1) CJA 1988:
- It is an offence for any person to have any indecent photograph or pseudo-photograph of a child in his possession
defences against indecent photographs
- That they had a legitimate reason for having the material
- That they had not seen the material, or had any cause to suspect it to be indecent
- The material was sent without any prior request made by him or on his behalf and did not keep it for an unreasonable time
prostitution
- Being a prostitute or paying for sexual activity are not illegal, and haven’t been for some time 0 since the 1960’s
- The law has commonly criminalised the behavior surrounding prostitution, effectively in order to make it as unlawful as possible
what is illegal in terms of prostitution
- To live off the earnings of a prostitute
- To keep or run a brothel
- Procure a woman to be a prostitute – most commonly held under the trafficking laws to prevent forced sexual labour
S1 Street Offences Act - kerb crawling
- Under S1 SOA 1959, it is an offence for a prostitute to soliciot their services or loiter in a public place
- In Smith v Hughes [1960] the metaphorical kerb was also extended to front windows etc
children and prostitution
- Since 2000, there has been a shift in attitudes concerning those involved in prostitution under the age of 16
- While they are committing an offence, it has shifted – rightfully so, to establish hat these children are in fact victims of sexual abuse rather than prolific in their offence
S1 sexual offences act 1985
- Prohibits the offence of kerb crawling, which is the solicitation of prostitutes from a motor vehicle
- Realistically, those caught by this are diverted into some sort of treatment programme by police, rather than a criminal trial
indecent exposure
- This is an offence highly regarded as stereotypical, ‘creepy old man in raincoat’
- However, this is not gender specific and merely requires that the D flashes their genitals, hoping that someone will see them and be caused alarm or distress
indecent exposure if not genitals?
• If the body part exposed is not genitals, but still capable of ‘outraging public decency’ then the offence will still be S66 SOA 2003 – such as a woman flashing her breasts at passing cars
