Sexual Offences

Rape (s 1)

Establishing the Offence

The Meaning of Penetration

Any insertion of the penis into the vagina counts as penetration, no matter how slight: Sexual Offences Act 2003, s 79(3). Penetration is a continuing act. This means that the offence can be committed even if the initial penetration was consensual, if consent is withdrawn before it ends: s 79(2).

The Meaning of Vagina

‘Vagina’ is used in the colloquial sense of referring to female genitalia rather than in a medical sense: R v F [2002] EWCA Crim 2936. It includes the vulva: Sexual Offences Act 2003, s 79(9). It also includes a surgically constructed vagina: s 79(3).

Reasonable Belief in Consent

The mens rea of rape is met if the prosecution can prove either:

• The defendant did not believe that the complainant was consenting; or
• That although the defendant did believe that the complainant was consenting, but that belief was not reasonable.

The first route requires proof of the defendant’s subjective state of mind, while the second route is objective. Whether a belief is reasonable is to be assessed by reference to all relevant factors, including:

The fact that the defendant had a special subjective characteristic such as a mental disorder which led him to irrationally believe in consent is not normally relevant when determining if the belief was reasonable: R v B [2013] EWCA Crim 3. However, the Court of Appeal in B thought that if the reasonableness of the belief turned on the ability to read subtle social signals, disorders like Asperger’s which impair this ability might be relevant.

Since rape is a crime of basic intent, the jury may not take into account the fact that the defendant was drunk when determining whether his belief was reasonable: R v Grewell [2010] EWCA Crim 2448.

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Assault by Penetration (s 2)

Establishing the Offence

Terms such as penetration, vagina and reasonable belief in consent were defined above.

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Sexual Assault (s 3)

Establishing the Offence

Terms such as reasonable belief in consent are defined in the same way as they are defined for rape.

Touching

Touching includes touching or penetration with any part of the body, with anything else and through anything (such as clothing): Sexual Offences Act 2003, s 79(8). Touching a person’s clothing while they are wearing it will suffice even if there is no contact or pressure on the skin: R v H [2005] EWCA Crim 732.

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Intentionally Causing Sexual Activity (s 4)

Establishing the Offence

Terms such as reasonable belief in consent are defined in the same way as they are defined for rape.

Rape can only be committed by an individual with a penis. The section 4 offence is more broadly applicable to women who cause non-consenting men to penetrate them. It is also applicable to a broad range of activity, such as forcing a person to masturbate.

There is no requirement that the defendant engage in the sexual activity themselves, or even that the defendant is present when it happens. The defendant acts only need to have caused a sexual activity.

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Sexual Offences Against Minors

Offences Against Children Under 13

The Sexual Offences Act 2003 creates equivalent versions to the above offences for where the complainant is under 13:

• Penetration of the vagina, anus or mouth of a child under 13 with the defendant’s penis: s 5;
• Sexual penetration of the vagina or anus of a child under 13 with any object: s 6;
• Sexual assault of a child under 13: s 7; and
• Causing or inciting a child to engage in sexual activity: s 8.

The primary difference with these offences is that there is no need for the prosecution to show that the complainant was not consenting. There is also no need to show that the defendant lacked a reasonable belief in consent. The defendant has no defence just because the victim ‘consented’ or they believed they were. Liability is strict. It does not even matter that the defendant (reasonably or otherwise) believed that the complainant was over 13: R v G [2008] UKHL 37.

It is also not relevant that the defendant is also under 13 or is under the age of consent: R v G [2008] UKHL 37. In this respect, it is possible for two children under 13 to commit the same offence against each other by willingly engaging in sexual activity.

Offences Against Children Under 16

The Sexual Offences Act 2003 creates equivalent versions to the above offences for where the complainant is under 16, as well as additional offences:

• Sexual touching of a child under 16: s 9;
• Causing or inciting a child under 16 to engage in sexual activity: s 10;
• Engaging in sexual activity in the presence of a child: s 11;
• Causing a child under 16 to watch a sexual act: s 12;
• Arranging or facilitating commission of a child sex offence: s 14;
• Meeting a child under 16 after sexual grooming: s 15; and
• Sexual communication with a child: s 16.

For each of these offences, the complainant must be under 16. The defendant must lack a reasonable belief that the complainant is 16 or older. If the complainant is under 13, there is no need to show that the defendant lacked a reasonable belief that the complainant was over 16.

It is not relevant that the defendant is also under 16: R v G [2008] UKHL 37.

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Sexual Offences Against Those with Mental Disorders

The Offences

Sections 30-33 prohibit sexual touching, causing or inciting sexual activity, causing the watching of sexual activity and engaging in sexual activity in the presence of a mental disorder which impedes choice.

A mental disorder is any disability or disorder of the mind. The mental disorder impedes choice if the victim cannot refuse because of a mental disorder due to lack of capacity to choose or an inability to communicate that choice (whether for physical or mental reasons): R v C [2009] UKHL 42.

Sections 34-37 create equivalent offences where the defendant does any of the above acts to a mentally disordered person using inducement, threat or deception. The statute does not specify that the mental disorder must impede choice.

Sections 38-41 create similar offences where the defendant is the victim’s carer and the victim has any mental disorder. The statute does not specify that the mental disorder must impede choice.

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Other Sexual Offences

The Sexual Offences Act 2003 creates a wide variety of miscellaneous sexual offences, such as:

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