Sexual Assault Flashcards
Assault by Penetration—Sexual Offences Act 2003, s. 2
- Triable on indictment
- Life imprisonment
The Sexual Offences Act 2003, s. 2 states:
(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.
Assault by Penetration
This offence involves penetration by any part of the body or anything else whatsoever. It is therefore a broad offence covering insertion into the vagina or anus (though not the mouth) of anything (such as a dildo or even an animal), provided that the penetration is ‘sexual’. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 2(2)).
Definition of the Term ‘Sexual’
Section 78 of the 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.
Therefore, activity under (a) covers things that a reasonable person would always consider to be sexual (for example, masturbation), while activity under (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). For instance, a doctor inserting his/her finger into the vagina of a patient might be considered sexual by its nature, but if done for a purely medical purpose in a hospital (the circumstances and genuine medical purpose of the doctor in examining the patient), it would not be sexual.
If the activity would not appear to a reasonable person to be sexual, 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’. Therefore weird or exotic fetishes that no ordinary person p. 542↵would regard as being sexual or potentially sexual will not be covered.
This pretty well follows the common law developments in this area (R v Court [1989] AC 28 and R v Tabassum [2000] 2 Cr App R 328).
Keynote
The offence of assault by penetration contains the first reference to the term ‘sexual’. The term is exceptionally important for a variety of offences contained in the Sexual Offences Act 2003. What has been said above in relation to how this term is interpreted will apply to all offences contained in the Sexual Offences Act 2003 where the term ‘sexual’ is used, apart from the offence under s. 15A (sexual communication with a child) and s. 71 (sexual activity in a public lavatory).
Sexual Assault—Sexual Offences Act 2003, s. 3
- Triable either way
- 10 years’ imprisonment on indictment
- Six months’ imprisonment and/or fine summarily
The Sexual Offences Act 2003, s. 3 states:
(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.
Sexual Assault
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] EWCA Crim 732).
The conduct must be intentional (rather than reckless or accidental).
Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 3(2)).
Definition of the Term ‘Touching’
Section 79(8) states that touching includes touching:
- with any part of the body;
- with anything else;
- through anything;
and in particular, touching amounting to penetration (this could include kissing).
The part of the body touched does not have to be a sexual organ or orifice. There is no requirement for force or violence so the lightest touching will suffice. ‘Touching’ for the purposes of an offence under s. 3 includes the touching of a victim’s clothing while they are wearing it even though the person of the victim is not touched through the clothing (R v H [2005] EWCA Crim 732). In H, it was held that it was not Parliament’s intention to preclude the touching of a victim’s clothing from amounting to a sexual ‘assault’. Where touching was not automatically by its nature ‘sexual’, the test under s. 78(b) applies (see para. 4.3.2). p. 543↵In a case where that section applies, it will be appropriate for a trial judge to ask the jury to determine whether touching was ‘sexual’ by answering two questions. First, would the jury, as 12 reasonable people, consider that the touching could be sexual and, if so, whether in all the circumstances of the case, they would consider that the purpose of the touching had in fact been sexual.
The victim need not be aware of the touching. For example, in the case of R v Bounekhla [2006] EWCA Crim 1217 the accused surreptitiously took his penis out of his trousers and ejaculated onto a woman’s clothing when pressed up against her dancing at a nightclub.
If touching does not occur, the offence is not completed, although the circumstances may amount to an attempt. Nevertheless, it remains arguable that ejaculation onto a victim’s clothing without contact with any part of the accused’s body still constitutes a touching.
Keynote
The offence of sexual assault contains the first reference to the term ‘touching’. The term is exceptionally important for a variety of offences contained in the Sexual Offences Act 2003. What has been said above in relation to how this term is interpreted will apply to all offences contained in the Sexual Offences Act 2003 where the term ‘touching’ is used.
Causing a Person to Engage in Sexual Activity without Consent—Sexual Offences Act 2003, s. 4
- If it involves penetration: of the victim’s anus or vagina, of victim’s mouth with penis, of any other person’s anus or vagina with a part of victim’s body or by the victim, or of any person’s mouth by victim’s penis—triable on indictment; life imprisonment
- Otherwise triable either way; 10 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily
The Sexual Offences Act 2003, s. 4 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally causes another person (B) to engage in an activity,
(b)
the activity is sexual,
(c)
B does not consent to engaging in the activity, and
(d)
A does not reasonably believe that B consents.p. 544
Causing Sexual Activity without Consent
The offence is committed when A causes B to engage in sexual activity without B’s consent, whether or not A also engages in it and whether or not A is present.
The offence can involve a number of permutations, for example a woman making a man penetrate her, a man forcing someone else to masturbate him, a woman making another woman masturbate a third person or even an animal. The shocking circumstances of R v H [2008] EWCA Crim 1202 are an example of where an animal was used in the commission of the offence where the visibly mentally disabled victim was forced, among other things, to be penetrated in the anus by a dog. It would include causing a person to act as a prostitute. Apart from the defendant and the victim, there may be others involved who also consent—they may be liable for aiding and abetting under the right circumstances.
The term ‘activity’ is not defined and is capable of being given a wide interpretation, although it must have actually taken place. The activity engaged in must be ‘sexual’ in accordance with s. 78. It can include engaging someone in a conversation of a sexual nature (R v Grout [2011] EWCA Crim 299).
This offence overlaps partly with rape in that it deals with vaginal, anal and oral penetration. The offence is wider than rape, in that rape can only be committed by a man, as a principal, and does not involve penetration with an object. The offence can be committed by and against persons of either sex and includes cases of ‘female rape’, i.e. where A causes B to penetrate her vagina with his penis. Furthermore, the offence makes A criminally liable for causing B to engage in sexual activity where B cannot himself be convicted of any offence because he has a defence such as duress or is under the age of criminal responsibility (see chapter 1.4).
Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 4(2)).
Rape and Other Offences Against Children Under 13
Offences under ss. 1 to 4 of the Sexual Offences Act 2003 are ‘mirrored’ by ss. 5 to 8 of the Act. The common features of the offences under ss. 5 to 8 are that the victim is a child under the age of 13 and that, once the actus reus of the offence is proved, no issue of ‘consent’ to the activity arises—a child under 13 cannot ‘consent’ to such activity.
In R v Walker [2006] EWCA Crim 1907, the Court of Appeal held that s. 8 of the Act created two offences: (a) intentionally causing; and (b) intentionally inciting a child under 13 to engage in sexual activity. The offence is centred on the concept of incitement and the acts had to be intentional or deliberate, but it was not a necessary ingredient for incitement of sexual activity that the defendant had intended the sexual activity to take place. An individual can commit an offence of incitement even if the activity he/she is encouraging, etc. does not take place.
