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)
What is evidential presumption?
Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply (defence can provide evidence that victim did in fact consent).
If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented.
What is conclusive presumption?
Covered in section 76 of the Sexual Offences Act 2003.
Covers circumstances in which the victim has been deceived, in which case no amount of evidence can prove that consent had been given.
The court will presume that the victim did not legally consent and that the defendant had no reasonable belief that consent had been given, if it proved in court that the defendant intentionally…
(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.
Recent case law has made it clear that certain deceptions that fall outside s 76 can be dealt was a lack of consent under s 74.
These include deceptions concerning…
The gender of the perpetrator.
Whether a condom will be used.
Blackmail.
Where a person lies about his/her HIV status (would amount to GBH rather than rape).
….Could negate consent.
Section 1 of the Sexual Offences Act 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.
Penalty:
- A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Section 2 of the Sexual Offences Act 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.
Penalty:
- Can be life imprisonment, whereas prior to 2003 the max sentence was only 10 years.
- Triable by indictment only.
Section 3 of the Sexual Offences Act 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.
Penalty:
- Triable either way.
- 6 months imprisonment and/or a fine if tried summarily.
- 10 years imprisonment on indictment.
Section 4 of the Sexual Offences Act 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.
Aggravating factors:
- Large age difference between offender and victim
- General vulnerability of victim
- Use of weapons to commit the offence
Penalty:
- The penalty is 6 months imprisonment and/or a fine if tried summarily, and 10 years imprisonment on indictment.
Section 69 of the Sexual Offences Act 2003.
Intercourse with an animal
A person commits an offence if— (Section 1)
(a) he intentionally performs an act of penetration with his penis,
(b) what is penetrated is the vagina or anus of a living animal, and
(c) he knows that, or is reckless as to whether, that is what is penetrated.
Section 69 of the Sexual Offences Act 2003.
Intercourse with an animal
A person commits an offence if— (Section 2)
(a) A intentionally causes, or allows, A’s vagina or anus to be penetrated,
(b) the penetration is by the penis of a living animal, and
(c) A knows that, or is reckless as to whether, that is what A is being penetrated by.
Section 69 of the Sexual Offences Act 2003.
Intercourse with an animal
A person guilty of an offence under this section is liable—
(a) Summary imprisonment for max 6 months or a fine or both
(b) Indictment, to imprisonment for max 2 years.
Trespass with intent to commit a sexual offence
A person commits this offence if:
Section 63 SOA 2003
They are a trespasser on any premises
They intend to commit a relevant sexual offence on the premises and
They know that, or are reckless as to whether, they are a trespasser.
Where an adult engages in sexual conduct with a child under the age of 13, there are offences of rape, assault by penetration, sexual assault and causing or inciting sexual activity, that do not rely upon what…?
Proof of lack of consent (ss 5-8 of the Sexual Offences Act 2003).
These offences are of strict liability due to the age of the child.
Where a person aged 10 or over engages in sexual activity with another child, and the activities are clearly non-consensual, which of the offences in the Sexual Offences Act 2003 could be employed?
ANY - ss 1-4?
What do s 9-12 of the Sexual Offences Act 2003 cover?
Circumstances where an adult (18+) engages in sexual activity with a child between 13-16.
These sections create a series of further offences designed to criminalise such conduct.
No need to prove consent.
In some cases, adult might be able to use defence of reasonable belief that the child was 16 or over.
Section 5 of the Sexual Offences Act 2003
Rape of a child under 13
(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 under 13.
Sexual organs can have been constructed through surgery and penetration is a continuous act from entry to withdrawal.
Defendant cannot contend he thought they were over 16.
Penalty: This offence is triable on indictment only and the maximum penalty is life imprisonment.
Section 6 of the Sexual Offences Act 2003
Assault of a child under 13 by penetration
(1) A person commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person with a part of his body or anything else,
(b) the penetration is sexual, and
(c) the other person is under 13.
Penalty: This offence is triable on indictment only and the maximum penalty is life imprisonment.
Section 7 of the Sexual Offences Act 2003
Sexual assault of a child under 13 without penetration
(1) A person commits an offence if—
(a) he intentionally touches another person,
(b) the touching is sexual, and
(c) the other person is under 13.
Penalty: Triable either way and the penalty is 6 months imprisonment and/or a fine if tried summarily and 14 years imprisonment on indictment.
Section 8 of the Sexual Offences Act 2003
Causing or inciting a child under 13 to engage in sexual activity
(1) A person commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
(c) B is under 13.
…can be committed by a man or a woman, can involve the child acting alone or with another person, incitement alone can lead to an offence.
Penalty is triable either way, 6 months imprisonment and/ or a fine if tried summarily. 14 years imprisonment on indictment
Section 8 of the Sexual Offences Act 2003
Causing or inciting a child under 13 to engage in sexual activity
(2) A person guilty of an offence under this section, if the activity caused or incited involved—
(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, or
(d) penetration of a person’s mouth with B’s penis,
…is liable, on conviction on indictment, to imprisonment for life.
Section 8 of the Sexual Offences Act 2003
Causing or inciting a child under 13 to engage in sexual activity
If with no penetration then section…
If with penetration then section…
s8(1)
s8(2)
Section 9 of the Sexual Offences Act 2003
Sexual activity with a child
(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual, and
(c) either—
(i) B is under 16 (proof of age required) and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13 (no defence available).
Penalty: Triable either way and the penalty is 6 months imprisonment and/or a fine if tried summarily and 14 years imprisonment on indictment.
Section 9 of the Sexual Offences Act 2003
9(2) Sexual activity with a child
A person guilty of an offence under this section, if the touching involved—
(a) penetration of B’s anus or vagina with a part of A’s body or anything else,
(b) penetration of B’s mouth with A’s penis,
(c) penetration of A’s anus or vagina with a part of B’s body, or
(d) penetration of A’s mouth with B’s penis,
Penalty: This offence is triable on indictment only and the maximum penalty is 14 years imprisonment.
Section 10 of the Sexual Offences Act 2003
10 Causing or inciting a child under 16 to engage in sexual activity
(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
(c) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
…Penalty is triable either way, 6 months imprisonment and/ or a fine if tried summarily. 14 years imprisonment on indictment
Section 10 of the Sexual Offences Act 2003
10 Causing or inciting a child under 16 to engage in sexual activity
(2) A person guilty of an offence under this section, if the activity caused or incited involved—
(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, or
(d) penetration of a person’s mouth with B’s penis,
Penalty: This offence is triable on indictment only and the maximum penalty is 14 years imprisonment.
Section 11 of the Sexual Offences Act 2003
11 Engaging in sexual activity in the presence of a child
(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally engages in an activity,
(b) the activity is sexual,
(c) for the purpose of obtaining sexual gratification, he engages in it—
- (i) when another person (B) is present or is in a place from which A can be observed, and
- (ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and
(d) either—
- (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
- (ii) B is under 13.
Penalty: Triable either way and the penalty is 6 months imprisonment and/or a fine if tried summarily and 10 years imprisonment on indictment.
Section 12 of the Sexual Offences Act 2003
12 Causing a child to watch a sexual act
(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(b) the activity is sexual, and
(c) either—
- (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
- (ii) B is under 13.
Penalty: Triable either way and the penalty is 6 months imprisonment and/or a fine if tried summarily and 10 years imprisonment on indictment.
Section 15 of the Sexual Offences Act 2003
15A Sexual Grooming (communication with a minor without intention to meet up)
(1) A person aged 18 or over commits an offence if—
- They communicate with a person under the age of 16 years and the communication is for the purpose of sexual gratification for the sender.
- Communication must be sexual or be made with the intention of encouraging the recipient to make a sexual communication.
Penalty:
- On maximum penalty on indictment of 2 years imprisonment.
Section 15 of the Sexual Offences Act 2003
15 Meeting a child following sexual grooming etc
(1) A person aged 18 or over (A) commits an offence if—
(a) A has met or communicated with another person (B) [on one or more occasions] and subsequently—
- (i) A intentionally meets B,
- (ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
- (iii) B travels with the intention of meeting A in any part of the world,
(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,]
(c) B is under 16, and
(d) A does not reasonably believe that B is 16 or over.
Penalty: Triable either way and the penalty is 6 months imprisonment and/or a fine if tried summarily and 10 years imprisonment on indictment.
Child sexual exploitation (CSE) occurs when?
Whenever a child under 18 years of age engages in sexual acts for a reward such as drugs, alcohol, food, accommodation, treats, money, gifts or even simply some attention from a particular person.
Can be carried out by the young person on another person, or on the young person by another person.
S1
Rape
S2
Assault by penetration
S3
Sexual Assault
S4
Causing a person to engage in sexual activity without consent
S5
Rape of a child under 13
S6
Assault of a child under 13 by penetration
S7
Sexual assault of a child under 13 without penetration
S8
Causing or inciting a child under 13 to engage in sexual activity
S9
Sexual activity with a child
S10
Causing or inciting a child under 16 to engage in sexual activity
S11
Engaging in sexual activity in the presence of a child
S12
Causing a child to watch a sexual act
S15A
Sexual Grooming (communication with a minor without intention to meet up)
S15
Meeting a child following sexual grooming etc
