Sexual offences Flashcards
s 78 Sexual Offences Act 2003
For the purposes of this Part (except sections 15A and 71 ), penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a)whatever its circumstances or any person’s purpose about it, it is because of its nature sexual, or
(b)because of its nature, it may be sexual and because of its circumstances or the purpose of any person about it (or both), it is sexual
- H [2005] EWCA Crim 732
victim walking on the path near her home - D approaches her - puts hand over her mouth and tries to pull her towards him - she breaks free and runs home
Touching of clothing will suffice for the touching under s3 SOA 2003, provided that the touching is of a sexual nature and for the sexual purpose of D, required to constitute sexual assault
The nature of ‘sexual’ identified by s78 (b) requires a two-part test, firstly an objective one about the nature of the act and secondly a subjective one about the purpose behind the D’s act.
section 1 SOA 2003
Rape
(1)A person (A) commits an offence if—
(a)he intentionally penetrates 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.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Section 2 SOA 2003
Assault by penetration
(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.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Section 3 SOA 2003
Sexual assault
(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.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Section 4 SOA 2003
Causing a person to engage in sexual activity without consent
(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.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
B [2013] EWCA Crim 3
D was convicted of counts of rape on his partner on 2 occasions - proven by medical experts he was suffering from mental illness at the time -likely paranoid schizophrenia
The test for reasonable belief in consent under SOA 2003 is objective
-Belief must be genuinely held and reasonable in all circumstances
- mental illness of D not considered
- but may be cases where D’s personality or abilities are relevant if they impede his ability to recognise social cues
- Bree [2007] EWCA Crim 804
D and V engage in sexual activity whilst both are drunk - V claims she did not consent at all - D disputes this and says she did consent - D convicted of rape - conviction quashed on appeal
Intoxication does not necessarily vitiate consent - whether it does or not is down to the state of mind of the V in a case by case basis
Kirk [2008] EWCA Crim 434
V had been abused by D previously- run away from home, slept on streets due to bullying + Blackmailing about what D had done to her prior - desperate so goes to abusers work- ends up having sex with him for £3.25 - money to be used for food
held that she did not consent - she just submitted to the act - convicted of rape
‘Willing submission’ to sex (no physical resistance to it) does not mean one has consented to sex, and so one can still commit rape despite the ‘willing submission’
Ruled by appeal court that term willing submission should no longer be used as confused with consent easily
Section 74 SOA 2003
Consent”
…..a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Section 76
conclusive presumptions about consent
(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a)that the complainant did not consent to the relevant act, and
(b)the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
i.e if any of subsection 2 applies there can be no consent and no reasonable belief of consent
- Jheeta [2007] EWCA Crim 1699
D and C in sexual relationship- c ends relationship with D - D messages her pretending to be PO- claism that PO dies - messages her pretending to be new PO- D demands as the POs that C have sex with D saying she will be liable for fine if not
Held that conclusive presumptions (s76) do not apply but convicted of rape under s74
For section the deception as to the nature and purpose of the act is taken not to include deception as to the scenario one is in that but taken to mean the nature and purpose of the intercourse
- R v B (aka Bingham) [2013] EWCA Crim 823
D and V (victim) are in sexual relationship for 5 yrs- D pretends to be 2 other people online and convinces V to send nude photos and then makes her do sexual acts over the internet- convicted under s76 but conviction quashed on appeal
when applying s76 we must take a strict view of it in accordance with Jheeta
If one is deceived as to a ‘peripheral matter’ - such as the identity of the person requesting sexual videos - but the nature and purpose of the acts are clear - s76 does not apply
- McNally [2013] EWCA Crim 1051
D pretends to be a boy but is in fact a young female and conducts an online relationship with V - They meet up and D still pretends to be a boy - sexual activity occurs - D penetrates V’s vagina - 4th and final visit D reveal ‘he’s’ a girl - V says she only consented since she thought D was a Boy - D convicted of sexual assault
Held that deception as to one’s gender can vitiate consent under s74 as it can removes one’s freedom to choose’
*R (Monica) v DPP [2018] EWHC 3508
D is an undercover PO who poses as an activist and forms a sexual relationship with V- an environmental activist - CPS chooses not to prosecute PO - High court uphold CPS decision
Deception as to the identity of a police officer for the purposes of police work does not vitiate consent under s76- provided that they are not pretending to be someone who is known to the complainant - eg an ex bf etc
Deception as to the intention of another not relating to the act does not vitiate consent as it is not deception as to the nature and purpose of the act
we can derive from R v Mocica that :
‘deception which is closely connected with “the nature or purpose of the act”, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it is capable of negating a complainant’s free exercise of choice for the purposes of section 74 of the 2003 Act.’
- used in Assange case
*Lawrance [2020] EWCA Crim 971
D lies about his feritility- claims he has had the snip to a woman he met on a dating sight - they have sex - she claims she asked for reassurance that he had a vasectomy but he claims such conversation never occurred
convicted of rape but conviction quashed on appeal
A deception by one about one’s fertility is not capable of negating consent as it is not sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it. - s76
A lie or deception about one’s fertility does not deprive a person of their freedom or capacity to choose to have sex with one, therefore does not negate consent under s74 of the SOA 2003
Compare to Assange where removal of condom is held to vitiate consent under s74
