Sexual Offences Lecture

Introduction

It almost goes without saying that there are a very large number of sexual offences that could be considered by this chapter. It is not possible, nor necessary, since some of the less common offences are unlikely to be given a great deal of consideration in an undergraduate course, to deal with all of these offences in detail. Furthermore, since almost all sexual offences are now contained within the provisions of the Sexual Offences Act 2003 (SOA 2003), many of the key terms are interchangeable between the various offences. The result is that once certain offences have been considered, a brief outline of others will provide sufficient understanding.

Rape

The definition of rape is set out in section 1 SOA 2003, which provides:

A person (A) commits and offence if -

1. He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents
   • Whether a belief is reasonable is to be determined having regard to all the circumstances, including the steps A has taken to ascertain whether B consents.
   • Sections 75 and 76 apply to an offence under this section.

Sections 75 and 76 address certain presumptions as to consent and will be considered below.

The offence can be broken down into four elements:

• Penetration with the defendant’s penis of the complainant’s vagina, anus or mouth;
• The complainant did not consent;
• The penetration was intentional;
• The defendant did not reasonably believe that complainant consented.

The first two elements contain the actus reus of the offence, the second two the mens rea.

Actus Reus

Penetration

The first part of the actus reus of rape makes it clear that it is an offence that can only be committed by a man. However, the fact that the penetration of the anus or mouth can constitute rape makes it clear that the offence can also be committed against a man. Section 79(3) SOA 2003 provides that parts of the body that are surgically constructed fall with the remit of the Act. This provision means that transsexual women can be raped vaginally, but also means that transsexual men are able to commit the offence. The limitation on penetration with a penis means that a woman, even if she forces a man to have sexual intercourse with her, can never be guilty of rape. She will be potentially liable for other offences considered below.

The offence only requires penetration of one of the prescribed orifices, it is not necessary for full sexual intercourse to take place. Furthermore, any degree of penetration, however slight, will be sufficient for the requirements of the offence.

The term penetration does not simply apply to the initial penetration, but constitutes a continuing act from entry to withdrawal (SOA 2003, s 79(2)). Therefore, if consent to the penetration ceases, the man must withdraw (Kaitamaki v The Queen [1985] AC 147). The important point in this respect is that in such a circumstance, the initial consent to the initial penetration becomes irrelevant and a defendant is unable to claim, if they become aware that consent has ceased, that there was continuing consent (R v Cooper [1994] Crim LR 351).

Absence of Consent

Consent is a complex issue in relation to rape. This is for two reasons. Firstly, consent forms part of the actus reus and the mens rea of the offence, and therefore it is important to distinguish between the two elements. Secondly, the notion of what constitutes consent is largely a jury question, but is one upon which certain guidance must often be given by the trial judge. Therefore, whilst the issue is ultimately one of fact, a certainty of approach is often necessary.

Section 74 SOA 2003 provides that:

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

The definition aims to focus on a complainant’s ability to make a choice. It does not contain any need for a complainant to demonstrate their consent or lack of it. In other words, a complainant may or may not consent without any extrinsic demonstration of their frame of mind. The result is that a complainant who freezes and is unable to communicate their consent, or lack thereof, may not be consenting.

The definition has two distinct considerations. The first of these requires a complainant to be able to freely make the choice as to whether they consent to the penetration. In order to be able to do this, the complainant cannot be subject to any kind of undue pressure relevant to their actions. Whilst this point appears to be a question of law, the level of undue pressure that is sufficient to vitiate consent is a matter for the jury.

This judgment clearly demonstrates that undue pressure may take any form. The fact that the complainant believed that she had little choice, because of her circumstances, to submit to the sexual intercourse was sufficient to demonstrate that she could not choose freely, and therefore did not consent.

The issue of consent is further complicated by the fact that it can cover a range of reactions ranging from reluctant agreement to an express desire for the penetration to occur. Clearly, the former position may require some guidance to be given to the jury. However, in R v Watson [2015] EWCA Crim 559 it was held that where a complainant submits because they feel that they are unable to resist, the circumstances may be such as to lead to a conclusion that they reluctantly agreed and therefore consented. This decision appears to go directly against the judgment in R v Olugboja [1982] QB 320, where it was held that a distinction between submission and reluctant acquiescence must be drawn; submission does not equate to consent.

The second element contained within the definition of consent relates to the complainant’s capacity to give consent. Capacity is not defined by SOA 2003, but it seems that in order to have sufficient capacity to consent a complainant must have sufficient knowledge or understanding to be able to decide whether to agree or not (R v Howard (1965) 50 Cr App R 56).

In R v Cooper [2009] 1 WLR 1786 it was held that the question that must be asked is firstly, whether a complainant is able to understand the information relevant to the decision that they must make and secondly, whether they are able to weigh that information to be able to make a choice. The effect of this is that a mentally disordered complainant who is able to understand the nature of the act they are being asked to consent to, may still lack capacity if they are unable to balance whether they ought to agree. Prior to this judgment, the position was simply one of whether the complainant was able to understand the nature of the act. If they could, they would have sufficient capacity to consent (X City Council v MB, NB, and MAB [2006] EWHC 168 (Fam)).

The second situation where capacity may be a specific issue relates to where a complainant is voluntarily intoxicated. In such circumstances, the jury should take four things into consideration (R v Coates [2008] 1 Cr App R 52):

• Intoxication may lower a complainant’s inhibitions, and therefore may make them do something that they would not ordinarily do when not intoxicated. The fact that a complainant agrees to something in this state does not mean that they have not consented. The issue is purely one of whether the intoxication was such as to remove the complainant’s capacity to consent.
• If a complainant is so intoxicated that they cannot agree or cannot understand the nature of the act or, if they can understand the act, are unable to weigh whether to consent or not, cannot consent.
• A complainant may be in the state described directly above even if they remain conscious. They may be aware that they do not want to consent, but are unable to communicate this, or they may simply be incapable of making a decision.
• An unconscious complainant cannot consent, even if the complainant’s body responds to the defendant’s actions.

This judgment is interesting in that it covers many of the issues arising out of consent. It addresses the fact that for the actus reus of rape, it is the complainant’s state of mind that is relevant to consent, not necessarily their actions. It also makes the importance of considering capacity in respect of all the circumstances.

Until relatively recently it was considered that a woman could not refuse to have sexual intercourse with her husband. This position was changed in R v R [1992] 1 AC 599, with a conviction secured in 2004 for a rape that occurred 20 years prior to the removal of the exemption (R v Barry C [2004] EWCA Crim 292).

Mens Rea

Intention to Penetrate

This element of the mens rea is ordinarily easily satisfied. For these purposes, all that is required is that the act of penetration is a deliberate or voluntary one (R v Heard [2008] QB 43). It would clearly be difficult for a defendant to suggest that penetration was accidental. Indeed, in R v F [2014] EWCA Crim 878, it was held that a trial judge was not at fault when stating in summing up the view that it was unlikely that a man might be able to penetrate (in this instance a child) whilst unconscious, retain an erection and ejaculate without waking up. It also seems that it is not a defence to state that the intention was to penetrate one orifice and another was penetrated accidentally. In R v K [2009] 1 Cr App R 331, in respect of the actus reus, it was held that penetration of any orifice will suffice to satisfy the offence, it does not matter which. It is submitted that there appears no good reason why a similar approach would not be applicable to an intention to penetrate.

No Reasonable Belief in Consent

The second mens rea element returns to the notion of consent in that the prosecution must demonstrate that the defendant did not reasonably believe that the complainant was consenting at the time of the penetration. This is not an entirely objective test, in that section 1(2) SOA 2003 provides that regard should be had to all of the circumstances including those that the defendant has taken to ascertain whether the complainant has consented. In this respect, certain characteristics of the defendant may be relevant to the consideration that the jury makes.

Although particular personality traits or a particular mental disorder might be relevant to whether a defendant can be considered to have a reasonable belief in consent. This is only to the extent that the trait or disorder has an impact on the defendant’s ability to recognise subtle social signals, and therefore the to fully recognise a lack of consent (R v Braham [2013] EWCA Crim 3). These particular characteristics are however limited, and delusional thinking or any form of psychosis, although this might subjectively make a defendant’s belief reasonable cannot be considered objectively reasonable. The reasoning behind this approach seems to be based on the fact that prior to the coming into force of SOA 2003, belief in consent was purely subjective (DPP v Morgan [1976] AC 182). In expressly reversing the decision in Morgan Parliament clearly intended to remove the subjective element of the offence and therefore to return to it, and go against Parliament’s apparent express intention, would be fundamentally wrong.

Self-induced intoxication cannot give rise to a reasonable belief in consent. Therefore, whilst subjectively, it is recognised that a drunk person may make a reasonable mistake as to the existence of consent, the belief that consent exists can never be reasonable (R v Grewal [2010] EWCA Crim 2448).

Section 1(2) SOA 2003 does not require a defendant to take positive steps in an attempt to ascertain whether a complainant is, in fact, consenting. However, it seems reasonable to suggest that a jury would undoubtedly take into account any steps that were taken by the defendant in a particular set of circumstances. Where there is no pre-existing relationship between the complainant and defendant, it is likely that greater steps will be needed in order to make a belief in consent reasonable than would be the case in a long standing relationship.

Presumptions as to Consent

SOA 2003 creates two distinct types of presumptions as to whether the complainant consented to the penetration. These presumptions are relevant to both the actus reus and mens rea consent elements. The first types of presumption, set out in section 75 SOA 2003, are evidential presumptions, which relate to situations where the complainant is not considered to have consented unless there is evidence that demonstrates that they have consented. The second type of presumption, contained within section 76 SOA 2003 are conclusive. If one of the circumstances set out within this section exists, the defendant will not be able to adduce evidence that shows that the complainant consented.

Evidential Presumptions

These presumptions create a degree of difficulty in that where one arises, a defendant must produce sufficient evidence to show that the presumption is rebuttable (SOA 2003, s 75(1)). However, it is not necessarily sufficient for a defendant to assert that they believed that, despite the section 75 presumption, the complainant consented (R v Ciccarelli [2012] 1 CR App R 190). In other words, the defendant’s belief in the existence of the facts that rebut the presumption must itself be reasonable. The result is that a jury must consider whether the belief in the specific facts is reasonable in addition to or perhaps instead of whether the belief in consent is itself reasonable. In other words, a reasonable belief in consent will necessarily take into account the facts set out in the presumptions without the need for the presumption to be directly considered. Furthermore, the fact that a presumption can be rebutted, does not automatically demonstrate that consent was present or that a defendant reasonably believed that it existed. The ordinary reasonable belief element must be considered in such circumstance.

The application of the section is fourfold:

• If a section 75 SOA 2003 presumption arises and the defendant cannot adduce evidence to rebut it, consent will not occur or they will not have a reasonable belief in consent.
• If they are able to adduce evidence, the question as to whether the evidence is sufficient to rebut is one for the jury.
• If the jury consider the evidence sufficient to rebut, the prosecution must produce evidence that demonstrates that the complainant did not consent.
• In this circumstance, the ordinary approach as to the defendant’s reasonable belief applies.

There are six evidential presumptions.

1. Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him. It is important to note that the use or threat of violence need not come from the defendant. It is violence directed at the complainant, whatever its origin that is relevant.
2. Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person.
3. The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act.
4. The complainant was asleep or otherwise unconscious at the time of the relevant act. This section reflects that view set out above that an unconscious person cannot consent.
5. Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented.
6. Any person administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. The important point in the context of this presumption is that the complainant’s condition at the time that the relevant act occurred is irrelevant to the operation of the presumption. All that is required is that the overpowering drug is administered, it does not matter whether the complainant was actually overpowered.

These presumptions are largely self-explanatory and it can be seen that the ability for them to be rebutted is limited. However, it may be possible for a defendant to demonstrate that either the complainant expressly desired one of the circumstances contained within the presumptions to exist (as some kind of fantasy, for example) and thereby rebut the presumption.

Conclusive Presumptions

There are two conclusive presumptions set out within section 76(2) SOA 2003. The first of these provides that a complainant will not be considered to have consented if the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (s 76(2)(a)).

This presumption will arise where a defendant has, for example, informed a complainant that they are going to perform a medical procedure on them where in reality the defendant simply intends to have sexual intercourse, with the result that the complainant consents to the penetration (R v Flattery(1877) 2 QB 410).

The second conclusive presumption arises where the defendant induces the complainant to consent to the relevant act by impersonating a person known personally to the complainant (s 76(2)(b).The limitation in this section is that the person who is being impersonated must be personally known to the complainant. The section would be triggered by somebody impersonating the complainant’s husband (see R v Elbekkay [1995] Crim LR 163), for example, but would not be if the defendant impersonated a film star whom the complainant admired, but did not know personally.

Non-disclosure of sexually transmitted diseases

In R v B [2007] 1 WLR 1567, it was made clear that non-disclosure of a sexually transmitted disease did not activate section 76(2)(a) SOA 2003. It was also held in R v Dica [2004] QB 1257 that non-disclosure would not vitiate consent under section 74 SOA 2003.

Complainant’s Mistake

The position in respect of whether a complainant consents with a mistaken belief as to the nature or quality of the act is linked closely to both section 76 and the general ability to make an informed choice. In R v Tabussum [2000] 2 Cr App R 328, for example, the complainants were found not to have consented when a defendant examined their breasts after telling them that he was medically qualified when he was not. Whilst the complainants had consented to the nature of the sexual assault (it was held that the same position applies for this offence and rape - it should also be noted that because this was a pre SOA 2003 judgment, the offence was indecent assault), they had not consented to the quality, and therefore the defendant was liable. It appears that this approach reflects the position in Devonald. Therefore, it is important to look at all aspects of the defendant’s actions and the complainant’s understanding of those actions in order to consider whether consent exists.

Assault by Penetration

Section 2 of SOA 2003 provides:

A person(A) commits an offence if -

1. he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
2. the penetration is sexual,
3. B does not consent to the penetration, and
4. A does not reasonably believe that B consents.

The mens rea of this offence is identical to that discussed above in relation to rape, and will therefore not be considered here. The actus reus differs in two respects. The first difference is easily identified, in that penetration can be with any part of the defendant’s body or anything else. Additionally, penetration of the mouth does not apply to this offence.

The second actus reus element requires the penetration to be sexual.

Section 78 SOA 2003 provides:

For the purpose of this Part (except section 71) penetration, touching or any other activity is sexual if a reasonable person would consider that -

1. whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
2. because of its nature it may be sexual and because of its circumstances of the purpose of any person in relation to it (or both) it is sexual.

The requirements of section 78(a) are reasonably clear, in that where an act is clearly sexual in nature, it does not matter whether the defendant gained any sexual gratification from it. Indeed, even if the defendant’s intentions are entirely non-sexual, if the act itself is clearly sexual, the act will satisfy section 78(a).

The application of section 78(b) is slightly more complex. Where the question as to whether the act is sexual is ambiguous, the jury must consider firstly whether, in its view, the nature of the act may make it sexual and, if it does, whether in the particular circumstances of it, it was in fact sexual (R v H [2005] 1 WLR 2005). It is only if both questions are answered in the affirmative, that section 78(b) will be satisfied.

In this respect, it seems that H both narrows and widens the scope of a sexual act at the same time. Whilst an act will not be sexual by circumstance if it is not sexual alone, the scope of what can be considered sexual alone is a broad one.

Sexual Assault

Section 3 of SOA provides:

A person (A) commits an offence if -

1. he intentionally touches another person (B),
2. the touching is sexual,
3. B does not consent to the touching, and
4. A does not reasonably believe that B consents

The only element of this offence which requires consideration is touching. This is because although where touching is given its ordinary meaning in most circumstances, the nature of the offence is such that a victim does not necessarily need to be aware that they are being touched (R v Bounekhla [2006] EWCA Crim 1217). Nor does the victim’s body need to be touched. A defendant who touches the victim’s clothes without touching the victim will satisfy the requirements of the offence (R v H [2005] 1 WLR 2005).

Causing a Person to Engage in Sexual Activity Without Consent

Section 4 SOA 2003 provides:

A Person (A) commits and offence if -

1. he intentionally causes another person (B) to engage in an activity,
2. the activity is sexual,
3. B does not consent to engaging in the activity, and
4. A does not reasonably believe that B consents

This section addresses circumstances in which a victim is forced to engage in any kind of sexual activity that may not be addressed by the preceding offences. It also has the effect of making a defendant liable if the victim is forced by the defendant to engage in sexual activity with somebody other than the defendant. In such a circumstance, the person committing the sexual act may be liable in addition to the person who causes the victim to engage in it. A husband who forces his wife to have sexual intercourse with another man may be liable under this section. The other man may be liable for rape.

Sexual Offences Against Children

Sections 5 to 15 contain a number of offences related to children. It is not possible to address these individually here. Two important points are relevant however. These offences fall into two categories. The first of these relates to sexual activity of the type set out in the adult offence with a child under the age of 13 (ss 5 - 8). Each of these offences removes any notion of consent from the offence. Therefore, where a defendant penetrates a child with his penis and the child is under 13, he will be liable for rape.

The second set of offences applies to children between the age of 13 and 16 (ss 9 -15). In these offences, a defendant may be able to raise a defence if they are able to assert that they reasonably believed the child to be aged 16 or over at the time of the relevant act. What is reasonable is clearly a question for the jury.

Sexual Offences - Hands on example

This question is designed to test your knowledge and understanding of sexual offences. Whilst this appears to be a very large area and whilst certain elements of it are quite complex, it is important to remember that many of the key elements are relevant to all of the offences. The result is that although there are numerous offences to learn, large parts of each offence are interchangeable.

Facts

1. Peter is extremely angry because he has just discovered that his wife, Julie, has been having an affair with his best friend Brian. In order to try to calm down a little, Peter decides to go to the pub. Whilst at the pub, he drinks 12 pints of strong lager and, as a result, becomes extremely drunk. In his drunken state, Peter comes to the conclusion that he is sure that Julie has made a mistake and that all it will take to win her back is for him to show her how much he loves her. In order to show Julie this Peter decides to go home to make love to her.

When he gets home, his wife is asleep. Peter decides to wake Julie up and tell her how he feels. Julie wakes to see how upset Peter is and decides, because she feels sorry for him, to allow him to make love to her for one last time (she intends to move in with Brian the next morning). Peter undresses, climbs into bed and penetrates Julie’s vagina with his penis. After a few minutes, Julie suddenly decides that what she is doing is wrong and says to Peter ‘Stop this now, I do not want you to carry on, get your penis out of me’.

Discuss Peter’s liability for rape if:

• He immediately withdraws his penis.
• He continues to have sexual intercourse with Julie because he believes that if he continues she will see how much he loves her.

2. The same situation exists as is set out above except that when Peter gets home he undresses and gets into bed with Julie who is dozing. Peter penetrates Julie’s vagina with his penis. When Julie stirs she says ‘What’s going on’. Peter says, ‘Don’t worry it’s me, Brian. Peter is at the pub and won’t be home for ages’.

Discuss Peter’s liability in this circumstance.

3. Peter and Julie’s son, Christopher, is 17-years-old and has been seeing his girlfriend Amanda for 2 months. Amanda is 16 and in the 6^th form at school. One evening after a date, Amanda invited Christopher to her house because her parents are out. Whilst at Amada’s house Christopher and her kiss and, because he thinks that Amanda will like it, Christopher pushes his hand between Amanda’s legs and touches her vagina through her jeans. Amanda immediately jumps up and throws Christopher out of the house.

Christopher is arrested the next morning. Consider his liability for sexual assault. How would your answer differ if Amanda had lied about her age and was only 15-years-old?

4. Situation 3 did not occur as described and Amanda was happy for Christopher to touch her as he did, although they did not go further than this. The following week Christopher tells Amanda that he is going away. Whilst he is away, Christopher contacts Amanda and suggests that she do something to remind him of why he likes her so much. He suggests that Amanda carries out a striptease over a webcam, so that he can watch it from his location. Amanda agrees, but what she does not know, is that Christopher has invited several of his friends around to watch ‘the show’. Amanda, therefore, does a striptease in front of Christopher and his friends.

Consider Christopher’s liability for any sexual offences.

1. The issue in this context is whether Peter rapes Julie. The actus reus of the offence requires penetration of the vagina with a penis - this is clearly satisfied. There can also be no consent. This is clearly not an issue at the start of the sexual activity because Julie expressly allows Peter to penetrate her. The issue arises when Peter is told to stop. Penetration is an ongoing act and therefore, as soon as the consent is withdrawn, the penetration must end. In the first scenario, this occurs and Peter will not be liable for rape. He does not satisfy the actus reus because he only penetrates with consent. When the consent ends, so does the penetration.

The alternative scenario is more problematic because Peter does not remove his penis when told to stop. This means that he satisfies the actus reus of the offence. There is penetration and Julie does not consent to it. The first mens rea element is satisfied in that the penetration is intentional. The second element falls to whether it was reasonable for Peter to believe that Julie consented. Whilst Julie’s actions are slightly conflicting, her words are unambiguous. The fact that Peter genuinely believes that Julie will want him to continue is irrelevant because the question is an objective one. Additionally, the fact that Peter is very drunk is not relevant to what a reasonable person in his circumstances would believe. It seems, therefore, that Peter will not be found to have a reasonable belief in consent.

2. When Peter penetrates Julie, she is asleep. This gives rise to the presumption that she does not consent (s 75(2)(a)). The question is whether Peter will be able to rebut this presumption. On the facts this seems unlikely. In order to do so, Peter would need to be able to show that Julie wanted him to penetrate her while she slept. This consideration becomes unnecessary once Peter pretends to be Brian because here he is inducing Julie to consent by impersonating somebody she knows personally (s 76(2)(b)). This presumption of no consent cannot be rebutted and Peter will be liable for raping Julie. 

3. The actus reus elements of sexual assault (s 3) are satisfied here. It appears that the touching is clearly sexual and even if it is not it certainly may be, with the circumstances making it so. The issue once again is one of consent. It seems that Amanda does not consent to the touching, so the issue is whether Christopher’s belief that she did was a reasonable one. This is clearly a jury question, but it seems possible, given the facts, that somebody in Christopher’s position may have reasonably believed that Amanda was consenting.

The second element in this question touches on the offences against children. These facts fall under section 9 SOA 2003, with the real issue being whether Christopher will be able to raise the defence that he reasonably believed that Amanda was at least 16. Again this is a question of fact, but it seems likely, given how close to 16 Amanda is and the fact that she lied to Christopher, that he might be able to do so.

4. This question refers to s 4 SOA 2003 - causing a person to engage in sexual activity without consent. Christopher intentionally causes Amanda to engage in the activity and the activity is clearly sexual. The issue falls to consent. The problem here is that whilst Amanda agreed to the activity, she did not know its true purpose. The facts are similar to R v Devonald and therefore, it seems unlikely that Amanda will not be considered to have consented. Section 76 SOA 2003 applies to this offence and therefore, because Christopher intentionally deceived Amanda as to the purpose of the act, section 76(2)(a) creates conclusive presumption in this respect. In any event, even if this presumption does not apply, it seems extremely unlikely that Christopher would be considered to reasonably believe that Amanda consented.

You will notice from these questions that they mostly focus on consent in various circumstances. This is because this is the largest issue for sexual offence, it being relatively simple to identify the other elements of an offence from the facts. It is important, therefore, that you fully understand the elements of consent as well as learning the other elements of each offence.

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