Criminal Law- Sexual Offences

Sexual offences are defined in the Sexual Offences Act of 2003, starting with Rape being the most serious offences, mitigating to sexual assault.

In an exam situation, as in trial as well, we will start with the highest ranking change possible and work down from there.

In sexual offences the victim is known as the complainant.

Rape

Defined in section 1.1 SOA as penetration of the vagina, mouth or anus, by the penis, without consent of the victim. This in turn sets out the AR of the offence:

  • Penetration
  • Vagina, mouth or Anus
  • By the penis (meaning women can not be charged for rape)
  • Lack of consent (Which appears in both the Ar and MR of the offence)

Consent is defined under section 74 of the SOA as ‘agreeing by choice and fas the freedom and capacity to make that choice.’ R v Kivt showed that someone why receives money in return for sex is not always evidence of consent. In this case it was deemed that they submitted to sex, but was still not consenting.

R v Bree- also a leading case on specifically intoxication and sexual offences. In this case it was decided that of a person is intoxicated so much so, then they will loose the capacity to consent to sex, and therefore the penetration will be unlawful.

R v Heard- this case decided that all sexual offences were that of basic intent and not specific intent, despite the fact that they have the requirement for intent. Therefore, for intoxication cases, wether or not the defendant was intoxicated has no value for the trial. It may have some value when it comes to sentencing.

The Mens Rea of the offence is split into two parts (section 1.2):

  1. Intention as to the penetration (Not Recklessness)
  2. Reasonable belief that the complainant did not consent to to the penetration.

 

Evidential and conclusive presumptions were included in the statute in sections 76 and 75 of the SOA in order to help the prosecution be able to prove that a sexual offence occurred. They can be used in order to prove the issue of consent for both the AR and the MR.

Conclusive presumptions are ones that if the prosecution manage to prove than it will conclusively be presumed that the complainant did not consent to the sexual activity. there are only 2 conclusive presumptions set out in section 76.

  1. intentionally deceive the complainant as to the nature or purpose of the act in question.
  2. If the defendant impersonated someone who was known personally to the claimant in order to engage in sexual activity.

Evidential presumptions are rebuttable and are in section 75. Protection may raise evidential presumption in order to attempt to prove a lack of consent from the complainant, however that does not automatically mean that there was not consent. The defence, once they are raised, disprove that in order to prove there was still consent. the evidential presumptions are:

  • fear of violence before or immediately at the time of the offence
  • fear for violence against another
  • unlawfully detained at the time
  • asleep or unconscious at the time
  • physically disabled which prevented the communication of the non-consent.
  • use of substance in order to overpower the complainant.

 

Assault by Penetration

This offence is quite similar to rape, however this is available for women.  The AR of this offence:

  • Penetration of the Anus or Vagina
  • Penetration is ‘sexual’ in nature
  • Lack of consent

The Mens Rea of the offence is split into two parts:

  1. Intention as to the penetration
  2. Reasonable belief that the complainant did not consent to to the penetration.

The term ‘sexual is defined in section 78. It is defined as whether the reasonable person would consider in its situation and nature to be sexual, there leaving it to a test of reasonableness once again.

The evidential and conclusive presumptions also apply to assault by penetration.

Sexual Assault is the basic sexual offence. and it covers a much wider form of sexual activity compared to the other 2 offences that have been covered. The AR of this offence created under section 3 of the act:

  1. The defendant touches the complainant
  2. The touching is sexual (section 78)
  3. There is a lack of consent from the complainant.

The Mens Rea of the offence is:

  • D intended to touch
  • Reasonable belief that the complainant did not consent to to the penetration.

Touching was further defined in section 79 as to include touching with any body part or anything else and through anything. In the case of R v H, grabbing someones trouser can be seen to be ‘touching’ the defendant.

Evidential and conclusive presumptions also apply to Basic Sexual Assault.

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