sexual assault

Question 1

Sexual offences act 2003

Answer 1

• repealed all previous law relating to sexual offences and combined it within one act
• It applies to all offences which happened post 1st May 2004, but if it is not possible to prove timing post 2004, the Violent Crime Reduction Act 2006 applies
• Divided into 2 parts
• Part 1 sets out the available sexual offences and part 2 deals with the management of the notification requirements (sex offenders register)

Question 2

The difficulty with sexual offences

Answer 2

• CPS guidelines on the matter make it clear that there is an understanding of the difficulties regarding this case
• The CPS state that prosecutors should only make their charging decisions following the procurement of strong evidence

Question 3

Public interest

Answer 3

• With the evidential test secured, the public interest remains but CPS guidance pertains to the fact that due to the seriousness of the offence, prosecution is almost certainly required in cases of rape

Question 4

Vigilantes and sexual offenders

Answer 4

• It is becoming more frequent for internet groups to use social media to attempt to uncover suspected paedophiles or to lure those in who may have paedophilic tendencies
• It’s a difficult issue, with the police being far more aware of issues of entrapment and the ability to be able to use that evidence

Question 5

S1 Voyeurism Act 2019

Answer 5

• While much of the law remains within the SOA, there have been new offences which will be assimilated into the SOA
• The new offence of ‘Upskirting’ was bought into power as of the 12th April 2019 and came as a result of campaigning by Gina Martin

Question 6

Historic sex abuse

Answer 6

• The passage of time does not, according to the CPS negate the possibility of prosecution and recently there have been significantly more cases of historic sexual abuse allegations which have resulted in further prosecutions
• Recent statistics have demonstrated that since 2014, there have 4024 allegations of historic abuse which then led to guilty pleas

Question 7

Is there point in sentencing historic abuse?

Answer 7

• In 2019, Boris Johnson claimed that police were “spaffing money up the wall” by continually investigating historic sex abuse
• In fact, 35% of allegations of the abuse led to convictions and guilty – demonstrating that there is a relevancy and requirement for these to be reported

Question 8

Victims

Answer 8

• All crimes leave their effect on the victim, families and friends – but the nature of sexual assault combined with the stigma of reporting sexual assault means that the pressure is even greater

Question 9

Rape prosecutions falling?

Answer 9

• Technically, the amount of prosecutions for rape offences has fallen in recent years – so does that mean that we are safer? Less prosecutions means less rapist, surely?
• Well, the reality is somewhat different; with reported offences rising within the last five years to 55, 195 (a rise of around 65%)
• This is down to multiple factors but namely due to the huge amount of hurdles which exist within the middle

Question 10

Evidence, CPS targets and thresholds

Answer 10

• The amount of evidence needed for a successful trial has become far more stringent, including social media and mobile phone data which makes the entire process more difficult for both police and victims
• If the evidence is gathered successfully, the ability to pass the CPS test can be challenging
• While the CPS still use the two tests, the nature of rape cases means that proving the guilt of the D is increasingly difficult

Question 11

CPS targets

Answer 11

• In 2019, it was revealed that the CPS had a secret target of 60% convictions and therefore were reluctant to put cases through without reasonable conviction

Question 12

Something to consider

Answer 12

• The evidence for these cases are incredibly difficult to prove – this is a crime which typically occurs behind closed doors, between between people who know each other and carries a stigma which does not need to be touched on
• Remember the difficulties the courts face when you are considering these offences

Question 13

S1 SOA 2003

Answer 13

• Defines the offence of rape

Question 14

A person commits an offence if:

Answer 14

1. He intentionally penetrates the vagina, anus or mouth of another person with his penis
2. B does not consent to the penetration,
3. And A does not reasonably believe that B consents

Question 15

Key elements

Answer 15

1. Penetration with the D’s penis of the V’s vagina, anus or mouth
2. The V did not consent
3. The penetration was intentional
4. The D could not have reasonably believed that the complainant consented

 Rape is an indictable offence, and carries a maximum penalty of life imprisonment

Question 16

AR of Rape- penetration

Answer 16

• The initial section of the AR makes it evident that it can only be committed by a man
   However, the fact that penetration of the anus or mouth means that this is an offence which can be carried out against both genders

Question 17

S79 (3) SOA 2003

Answer 17

• States that any parts of the body which are surgically constructed fall within the remit of the Act
• The limits of this offence are such that a woman who forces a man to have sex with her, will not be guilty of rape - she will however, be guilty of another offence

Question 18

Degrees of the offence

Answer 18

• For there to be an offence of Rape, it is not necessary for there to be full sexual intercourse – any penetration, however slight will be sufficient

Question 19

Limits of consent

Answer 19

• The issue of penetration covers the entire continuing act

- Therefore, if consent if given – and then withdrawn, the man must withdraw Kaitamaki v The Queen [1985]

Question 20

R v Cooper [1994]

Answer 20

• The initial consent to the initial penetration becomes irrelevant if it is redacted, and a defendant cannot claim that there was consent if they were aware if the redaction

Question 21

Consent

Answer 21

 It’s a complex issue, and is actually part of the AR and MR on this offence
 The question of what constitutes consent is a jury question, but guidance can be given by the trial judge

Question 22

S74 SOA 2003

Answer 22

A person consents if he agrees by choice, and has the freedom and capacity to make that choice

Question 23

The complainant’s ability to consent

Answer 23

 There is no requirement for the defendant to demonstrate their consent or lack thereof
 A complainant may or may not consent without any outward demonstration of their frame of mind
 Someone who is unable to consent or freezes may not be consenting

Question 24

R v Watson [2015] vs R v Olugboja [1982]

Answer 24

 These cases demonstrated the conflicting issues which the courts have had regarding the expression of consent
 Roberts stated that if the complainant feels there are unable to resist, then their reluctant submission is consent
 Olugboja however, was distinguished from this and held that submission and reluctance is different and submission does not = consent

Question 25

Intoxication and consent

Answer 25

 Convoluted area of the law and in Coates [2008] it was heled that the jury should consider 4 things:

1. Did the intoxication remove the V’s ability to consent?
2. If they are so intoxicated they cannot agree, understand, or weigh up consent – they have not consented
3. A complainant may be in the state above and remain conscious. They may not be able to communicate and that isn’t consent
4. 4. An unconscious person cannot consent – even if the V’s body responds to the D’s actions

Question 26

Mens Rea- intention to penetrate

Answer 26

 For these purposes, it is required that the act of penetration is a deliberate or voluntary one
 R v Heard [2008] must be committed by intention to touch, and voluntary intoxication is no defence to this

Question 27

No reasonable belief in consent

Answer 27

• Not an entirely objective test, and S1(2) provides that regard should be had to all of the circumstances
• R v Braham [2003] particular personality traits or mental disorders might be relevant too whether a D can be considered to have had reasonable belief in the consent

Question 28

R v Grewel [2010]

Answer 28

• Self induced intoxication for the D cannot be enough to give rise to a reasonable belief in consent
• S1(2): does not require a defendant to take positive steps in an attempt to ascertain whether the V is consent - are there issues here? Should there be responsibility of both parties here