Sexual assault continued Flashcards
S2, 3, 6 and 7 SOA 2003
S2: Assault by penetration
S3: Assault of a child under 13 by penetration
S5: Sexual assault
S7: Sexual assault of a child under 13
Sexual Assault
- This was a key element in the introduction of the SOA; an effort to tidy up a multitude of offences which existed where there was unwanted sexual contact
S3(1) SOA 2003
A person commits an offence if:
A) He intentionally touches another person
B) The touching is sexual
C) V does not consent to the touching
D) 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
Is this justified
- 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 do we mean by touch
- S3(1) a makes it clear that touching includes touching:
- With any part of the body
- With anything else
- Through anything
- Also note, that this requires touching with any part of the body – so if D uses X to touch V, that will be sufficient
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
W/out 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 Bounkhla [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
- Note our different attitudes towards sexual activity and criminal responsibility
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
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:
a) 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 the 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 sommented 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
Further offences
- While the reform ensured that there was a more consistent approach concerning child sexual offences, it did little to reduce the amount
- Sexual activity with a child
- Inciting a child to engage in sexual activity
- Causing a child to watch a sexual act
- No marriage exception
- Meeting up with a child following grooming
Indecent photographs of children
S1 Protection of Children Act 1978 makes it an offence:
a) To take, or permit to be taken or to make any indecent photograph or pseudo-photograph of a child
Context
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
- 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
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 1959- 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
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
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
