Sexual Offences

Question 1

Define ‘Rape’ - as per the statute

Answer 1

s. 1 SOA 2003 - (1) A person (A) commits an offence if -
(a) he intentionally penetrated the vagina, anus or mouth of another person (B) with his penis
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

Question 2

Actus Reus of Rape

Answer 2

Conduct Element:
1) Penetration of the vagina, anus or mouth of another person with his penis. This is a continuing act (V can withdraw at any point and with the non-fulfilment of a condition)

Circumstance Element:
2) B does not consent (question of B’s subjective state of mind)

Question 3

Mens Rea of Rape

Answer 3

1) Intentional penetration
2) A does not reasonably believe in B’s consent (Objective) = intends V to lack consent, knows V does not consent, reckless as to consent

Question 4

Difference between AR Consent and MR Consent in regard to SOA

Answer 4

AR Consent: ‘V does not consent’ = question of fact for the jury to decide based on V’s subjective state of mine

MR Consent: ‘D does not reasonably believe V consents’ = objective test

Question 5

How to determine consent in SOA

Answer 5

1) s. 76 = Conclusive presumptions about consent (relevant to AR and MR)
2) s. 75 = Rebuttal presumptions about consent (relevant to AR and MR)
3) s. 74 = Definition of consent (relevant to AR and MR)

Question 6

Define ‘Assault by Penetration’ - as per the statute

Answer 6

s. 2 SOA 2003: (1) A person (A) commit 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
Max. penalty - Life

Question 7

Define ‘sexual assault’ - as per the statute

Answer 7

s. 3 SOA 2003: (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
(d) A does not reasonably believe that B consents
Summary Conviction = 6 months
Conviction on Indictment = 10 years

Requires actual contact, not just a threat / far of contact

Question 8

Define “Causing a person to engage in sexual activity without consent” - as per the statute

Answer 8

s. 4 SOA 2003: (1) A person (A) commits an offence if -
(a) he intentionally causes another person (B) to engage in an activity (=RESULT)
(b) the activity is sexual
(c) B does not consent to engaging in the activity
(d) A does not reasonably believe that B consents

Question 9

What activity does a s. 4 SOA 2003 offence involve

Answer 9

s .4(4) SOA 2003:

(a) penetration of B’s anus or vagina
(b) penetration of B’s mouth with a person’s penis
(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else
(d) penetration of a person’s mouth with B’s penis

Question 10

Definition of ‘sexual’ - as per the statute

Answer 10

s. 78 SOA 2003 (part of AR only): Penetration, touching or any other activity is sexual if a reasonable person would consider that -
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its sexual nature, or
(b) because of its nature it maybe sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

Question 11

Is there any test to determine whether an act was sexual?

Answer 11

R v H: 2 stage test for part (b) of the definition of sexual under s. 78:

(1) Was it potentially sexual?
(2) Was it actually sexual?

Question 12

What if the touching is not sexual?

Answer 12

Touching may be Battery (not assault)

Question 13

Mens Rea of s. 2 - s. 4 SOA 2003 Offences

Answer 13

1) Intentional conduct
2) Absence of reasonable belief in consent

s. 4 = mens rea as to the result

Question 14

Difference between s. 1 - s.4 SOA 2003 offences and s. 5 - s. 8 SOA 2003 offences

Answer 14

They mirror each other but D can be prosecuted under these offences regardless of consent

Question 15

Define ‘rape of a child under 13’ - as per the statute

Answer 15

s. 5 SOA 2003: (1) A person commits an offence if -
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis and
(b) the other person is is under 13

Max. penalty = life

Question 16

What offence comes under s. 6 SOA 2003

Answer 16

Assault of a child under the age of 13 by penetration

Question 17

What offence comes under s. 7 SOA 2003

Answer 17

Sexual assault of a child under the age of 13

Question 18

What offence comes under s. 8 SOA 2003

Answer 18

Causing OR inciting a child under the age of 13 to engage in sexual activity (two offences)

Question 19

What is the age of criminal responsibility in the UK

Answer 19

10 years old

Question 20

What sections of SOA 2003 cover sexual offences against children under the age of 16

Answer 20

s. 9 - s. 12 SOA 2003 - offences apply to adults (18+) who offence against children (under 16)

Question 21

Is consent relevant for offences under s. 9 - s. 12

Answer 21

No - not relevant for AR or MR

Question 22

Differences between offences under s. 5 - s. 8 and s. 9 - s. 12

Answer 22

1) Where V = 13 - 15, D will only be liable here if D does not reasonably believe V is <16
2) Offences in this category and classified differently depending on D’s age

Question 23

What offence comes under s. 9 SOA 2003

Answer 23

Sexual activity with a child (touching: seminal to s. 3 and s. 7)

Question 24

What offence comes under s. 10 SOA 2003

Answer 24

Causing OR inciting a child to engage in sexual activity - includes explicit texting and certain types of grooming

Question 25

What offence comes under s. 11 SOA 2003

Answer 25

Engaging in sexual activity in the presence of a child

Question 26

What offence comes under s. 12 SOA 2003

Answer 26

Causing a child to watch a sexual act (includes image / video)

Question 27

What offence comes under s. 13 SOA 2003

Answer 27

Child sex offences committed by D’s under 18 (lower max sentence)
Up to CPS whether to charge d<18 under s. 13 or e.g., s. 1, s. 5, s. 9.

Question 28

What offence comes under s. 14 SOA 2003

Answer 28

Preparatory offences against children under 16: arranging or facilitating.
Statutory exception for youth or health workers providing safe sex advice to children

Question 29

What offence comes under s. 15 SOA 2003

Answer 29

Preparatory offences against children under 16: meeting a child following grooming. R v Gaviria [2010]: communications need not be sexual; intention to commit a sex offence later

Question 30

Reform for SOA 2003

Answer 30

1) Boundaries of rape
(a) definition of consent?
(b) reducing centrality of non-consent
(c) seeing every penetration etc. as unlawful except where there is explicit articulated consent?

2) Label of rape
3) Voluntarily intoxicated consent
4) Undue complexity of the statute?
5) A separate deception offence?