Sexual Offences Flashcards
According to the Sexual Offences Act 2003, what is consent?
Section 74
A person consents if he agrees by choice, and has the freedom and capacity to make that choice.
In broad terms, what sexual offences are normally considered as serious when committed against adults (including attempts):
- Rape (vaginal, anal and oral).
- Sexual assault by penetration.
- Sexual assault where the assault is particularly serious or is aggravated (e.g with the involvement of someone with a mental disorder).
- Causing a person to engage in sexual activity without consent.
- Anything to do with children.
The term sexual appears in ss 2, 3 and 4 as well as many of the child sex offences.
According to s 78 of the Sexual Offences Act 2003, when can an activity be ‘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 nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
Section 78 of the SOA 2003
If a person has a hidden sexual motive to performing an innocent activity would that be considered sexual under the terms of this Act?
No, because it would fail in the definition of ‘sexual’ part 1 above.
This means that obscure fetishes that are not generally considered sexual would normally be excluded by this Act.
Someone cannot have the capacity to consent if…
Unconscious.
Physical disability that prevents them from communicating that they do not consent.
Do not have the mental capacity to consent (e.g. through learning difficulty/mental health issues).
If they are stupefied/ intoxicated through a substance they have taken either knowingly, accidentally or administered by a perpetrator (e.g. drug facilitated rape).
Acts of a Sexual Nature in Public Places/ Exposure/ Flashing is covered by what legislation?
s 66(1) of the Sexual Offences Act 2003
He/she exposes his/her genitals and intends that someone will see this and be caused alarm or distress.
Offence is triable either way and the penalty is imprisonment (summarily, 6 months and 2 years on indictment).
Will a ‘streaker’ planning ‘merely’ to cause amusement by intending others to see his exposed genitals by committing an offence of exposure/ flashing?
No, because he had no intent to cause alarm or distress.
Outraging public decency is covered by common law which states that it is offence to…
Commit an act of a lewd, obscene and disgusting nature and outrage public decency.
….in order to outrage, exposure must go beyond accepted limits of decency and be likely to offend (e.g masturbation). It does not need to be a sexual act or ‘live’- may just be display of an object associated with sexual activity.
Public must have access to, or be able to see, the relevant location
Offence is triable either way and the penalty is imprisonment (summarily 6 months and unlimited on indictment).
Sexual activity in a public lavatory is an offence under what legislation?
s 71 of the Sexual Offences Act 2003.
There is no need for witnesses, and if there are, they don’t need to be outraged/ distressed.
Activity needs to be such that a reasonable person would regard it as sexual in nature.
Offence is triable summarily and the penalty is 6 months imprisonment and/ or a fine.
What is voyeurism?
s 67(1) of the Sexual Offences Act 2003.
a) A person commits voyeurism if for the purpose of gaining sexual gratification he/ she observes another person doing a private act
b) …he\she knows that the other person does not consent to being observed for [the purposes of] sexual gratification.
Voyeurism using live link equipment is covered under what legislation?
s 67(2) of the Sexual Offences Act 2003.
Person A commits an offence if he/she operates an equipment with the intention of enabling another person B to observe, for sexual gratifications, a third person C doing a private act.
Person A must know that C has not consented to this.
The recording of images in relation to voyeurism is covered under what legislation?
s 67(3) of the Sexual Offences Act 2003.
Similar to s 67(2) except that the acts are recorded and not just transmitted.
Aggravating factors include recording of images in relation to voyeurism to then circulate these images or recordings, particularly when motivated by commercial gain (Sentencing Guidelines Council, 2007).
Installing equipment and adapting structures for voyeurism is covered under what legislation?
s 67(4) of the Sexual Offences Act 2003.
The offence is committed even if the installation of adaptation is never used.
A structure can include a tent, vehicle, vessel, or some other temporary or moveable structure.
Voyeurism offences penalties…
Offences are triable either way and the penalty is imprisonment (summarily, 6 months and 2 years on indictment).
What is up-skirting?
Describe practices where an individual photographs or films from below under another person’s clothing (without consent), with the intention of viewing the victim’s genitals or buttocks.
Committed even if wearing underwear.
s 67a Sexual Offences Act 2003 new laws will make it illegal, max sentence of 2 years imprisonment on indictment and 12 months if tried summarily.
Possession of extreme pornographic images
A person commits this offence if…
(Section 63 (1) Criminal Justice and Immigration Act 2008)
They are in the possession of an extreme pornographic image.
Therefore, for this offence to be complete, three elements must be fulfilled:
- the image is pornographic (produced solely for the purpose of sexual arousal)
- the image is grossly offensive, disgusting or obscene
- a reasonable person viewing the image would think that any person or animal in the image was real
An image is said to be extreme if it depicts (or appears to depict) activities which:
Threaten a person’s life;
Depicts rape or non-consensual sexual penetration (this was added by the Criminal Justice and Courts Act 2015, and therefore does not apply to material held prior to 13 April 2015).
Result in (or are likely to result in) serious injury to a person’s anus, breasts, or genitals (including surgical reconstructions).
Involve sexual interference with a human corpse (necrophillia); or
Involve a person having intercourse or oral sex with an animal (bestiality and the act, person, or animal depicted in the image is real (or appears to be).
Defences for possessing extreme images include…
s 65 of the Criminal Justice and Immigration Act 2008
(a) that the person had a legitimate reason for being in possession of the image concerned;
(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image;
(c) that the person—
(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii) did not keep it for an unreasonable time.
Possession of extreme pornographic images offence penalties
Triable either way and the penalty is 12 months imprisonment and/ or a fine if tried summarily.
For trials on indictment the penalty is imprisonment (3 years for images which depict life threatening acts or involve serious injury; and two years for images that involve necrophilia or bestiality.
What are excluded images?
Excluded in the sense that they would not be of concern for the offences under s 63(1) of the Criminal Justice and Immigration Act 2009.
- Must be part of a full length mainstream or documentary film classified by the British Board of Film Classification (BBFC) and will not be considered as pornographic if shown as part of the complete film.
If parts have been extracted solely/ principally for the purpose of sexual arousal = no longer excluded (s 63(3)).
For the purposes of legislation related to child sexual abuse imagery, any person under what age is considered a child?
18
Some photographs of children may appear indecent but are not indecent in terms of the legislation…
s 1 of the Protection of Children Act 1978
Exception 1A is that the photograph was of a person aged 16 or over, and at the time of the alleged offence, the person and the suspect were married or lived together as partners in an enduring family relationship.
Exception 1B is that the photograph is for use in criminal investigation of proceedings, in any part of the world.
Producing and distributing indecent photographs of children
It is an offence for a person—
s 1 of the Protection of Children Act 1978
(a) To take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child; or
(b) To distribute or show such indecent photographs [or pseudo-photographs]; or
(c) To have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or
(d) To publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so.
Penalty:
- Triable either way.
- If tried summarily the penalty is 6 months imprisonment and/ or a fine.
- On indictment the penalty is 10 years imprisonment.
Producing and distributing indecent photographs of children
s 1 of the Protection of Children Act 1978
Defences
- Had a legitimate reason for distributing, showing or having possession of the photographs or pseudo-photographs.
- The defendant did not see the photographs or pseudo-photographs, or saw them and did not know they were indecent or have any cause to suspect them to be indecent.
It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—
s 33(1) of the Criminal Justice and Courts Act 2015
(a) without the consent of an individual who appears in the photograph or film, and
(b) with the intention of causing that individual distress.
(2) But it is not an offence under this section for the person to disclose the photograph or film to the individual mentioned
Penalty:
- Triable either way, with a penalty of a fine and/or 12 months imprisonment if convicted summarily.
- Maximum of 2 years imprisonment if convicted on indictment.
s 33 of the Criminal Justice and Courts Act 2015
Disclosing a private sexual photograph or film
Defences
Disclosure is necessary to prevent, detect or investigate a crime (s 33(3); or
Relates to the preparation or publication of journalistic material which is in the public interest (s 33(4); or
There was a reasonable believe that the images had already been released for reward, and there was no reason to doubt that the portrayed person had not consented to the release, for example as commercial pornography.
What are Sections 1-4 of the Sexual Offences Act 2003?
Rape (s 1)
Assault by penetration (s 2)
Sexual assault (s 3)
Causing another person to engage in sexual activity without consent (s 4)
The Sexual Offences Act 2003 introduced two sets of presumptions which courts can make in relation to the guilty knowledge of the defendant:
Evidential presumptions (s 75)
Conclusive presumptions (s 76)
