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