Criminal Law: Sexual Offences

Sexual Offences

Rape (s 1)

Establishing the Offence

The actus reus of rape is penetration of another person’s vagina, anus or mouth with the defendant’s penis in circumstances where the other person does not consent: s 1(1)

The mens rea of rape exists if the defendant intended to penetrate the vagina, anus or mouth and did not reasonably believe that the other person was consenting: s 1(1).

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 This means that the offence can be committed even if the initial penetration was consensual, if consent is withdrawn before it ends: s 79(2).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:

Spiral Staircase

Any steps which the defendant took to ascertain that the complainant consented: Sexual Offences Act 2003, s 1(2). The defendant is not obliged to take steps to verify consent, however.

Time, big ben

Factors such as the defendant’s age and sexual experience (in general and with the complainant) can be relevant, though their weighting may vary from case to case: R v McAllister [1997] Crim LR 233.

Mystery, misunderstanding, question

Evidence that there has been some legitimate misunderstanding may be relevant: R v Taran (Farid) [2006] EWCA Crim 1498. For example, where the defendant agreed to have consensual sex with one person but reasonably mistakes another person for them: R v Whitta [2006] EWCA Crim 2626.

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.


Assault by Penetration (s 2)

Establishing the Offence

The actus reus of assault by penetration is penetrating the vagina or anus of another person with a part of the defendant’s body or anything else, in circumstances where the penetration is sexual and the other person does not consent: Sexual Offences Act 2003, s 2(1).

The mens rea of assault by penetration is established where the defendant intended to penetrate the complainant’s vagina or anus and did not reasonably believe that the complainant was consenting: Sexual Offences Act 2003, s 2(1).

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


Sexual Assault (s 3)

Establishing the Offence

The actus reus of sexual assault is touching the victim in a way that is sexual in circumstances where the complainant does not consent: Sexual Offences Act 2003, s 3.

The mens rea of sexual assault is established if the defendant intended to touch the complainant and did not reasonably believe they consented: Sexual Offences Act 2003, s 3.

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.


Intentionally Causing Sexual Activity (s 4)

Establishing the Offence

The actus reus of intentionally causing sexual activity is causing another person to engage in sexual activity in circumstances where the other person did not consent to engaging in sexual activity: Sexual Offences Act 2003, s 4.

The mens rea of intentionally causing sexual activity is established where the defendant intended to cause the other person to engage in sexual activity and did not have a reasonable belief that the other person consented: Sexual Offences Act 2003, s 4.

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.


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.


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.


Other Sexual Offences

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

Prostitution Offences
Red light district, neon

Sections 47-51 create various offences of sexually exploiting children, while sections 52-53 criminalises causing, inciting or controlling prostitution.

Preliminary Offences

Intentionally causing a person to take a stupefying or overpowering substance to enable sexual activity is an offence under s 61. Section 62 creates the offence of committing any other offence with intent to commit a sexual offence, while s 63 creates the offence of trespass with intent to commit a sexual offence.

Exposure & Voyeurism
Skyscraper, windows

Section 66 criminalises exposure, while section 67 criminalises voyeurism.

Pornography Offences
laptop

Section 48 makes it an offence to cause or incite child pornography.

Bestiality & Necrophilia
Grave stone

Bestiality is criminalised by s 69, while necrophilia is criminalised by s 70.

Public Lavatory Offence
Bathroom, lavatory

Section 71 makes it an offence to engage in sexual activity in a public lavatory.

Abuse of Trust Offences
Deceit, phone call

Sections 16-18 criminalise sexual activity involving someone under 18 (including those over the age of consent) where the defendant is an adult in a position of trust over the victim.

Family Offences
Tree, branches

Sections 25-26 create offences of engaging in sexual activity with a family member under the age of 18 (including those over the age of consent). Sections 64 and 65 make penetrative sexual activity between adult relatives.


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Sexual Offences Against the Person Quiz

Test yourself on the principles governing the sexual offences.

1 / 21

Harley has a social development disorder, which leads her to believe that Arthur was signalling consent to sex with his body language. Arthur is not in fact consenting, but does not resist as he is afraid of Harley. When charged under section 4 of the Sexual Offences Act 2003, Harley argues that she had a reasonable belief in consent. Can her mental disorder be taken into account?

 

2 / 21

Harley has a psychotic disorder, which leads her to believe that Arthur was awake and asked her to have sex with him. In reality, Arthur is unconscious and did not consent. When charged under section 4 of the Sexual Offences Act 2003, Harley argues that she had a reasonable belief in consent. Can her mental disorder be taken into account?

 

3 / 21

What three elements must the prosecution prove to establish rape?

4 / 21

Richard has sex with Theresa. She does not feel in the mood, but she does not object, move or otherwise indicate this. Did she consent to sex?

 

5 / 21

Harley is drunk, which leads her to believe that Arthur was signalling consent to sex with his body language. Arthur is not in fact consenting, but does not resist as he is afraid of Harley. When charged under section 4 of the Sexual Offences Act 2003, Harley argues that she had a reasonable belief in consent. Can her drunk state be taken into account?

 

6 / 21

Amanda and Kevin are both 15 years old, but Amanda tells Kevin she is 16 and Kevin believes her because she looks older. Amanda tells Kevin she would like to have sex with him, and he agrees. They have sex. Has Kevin committed one of the sexual offences against a child under 16?

7 / 21

Harley and Arthur are having sex. After vaginal penetration, Harley decides she wants to stop and tells Arthur to stop. Arthur does not stop, and later argues that what he did was not rape because Harley consented to the initial penetration. Is this argument correct?

 

8 / 21

In which two circumstances is an act is sexual?

9 / 21

In which of the following situations is consent to a sex act rebuttably presumed to be absent? (Five answers)

10 / 21

Can non-disclosure of STIs vitiate a person's consent, for the purposes of the sexual offences?

11 / 21

Amanda and Kevin are both 12 years old, but Amanda tells Kevin she is 16 and Kevin believes her. Amanda tells Kevin she would like to have sex with him, and he agrees. They have sex. Has Kevin committed rape of a child under 13?

12 / 21

What must the prosecution demonstrate to show one of the sexual offences against children under 16?

13 / 21

What three elements must the prosecution prove to establish intentionally causing sexual activity?

14 / 21

What four elements must the prosecution prove to establish sexual assault?

15 / 21

Harley has vaginal sex with Arthur. She knows that he is not consenting. Which offence has Harley committed?

 

16 / 21

What must the prosecution demonstrate to show one of the sexual offences against children under 13?

17 / 21

In which of the following situations is consent to a sex act irrebuttably presumed to be absent? (Two answers)

18 / 21

What four elements must the prosecution prove to establish assault by penetration?

19 / 21

Can a drunk person consent to a sexual act?

20 / 21

What two things must a person be able to do to consent to a sexual act?

21 / 21

The definition of 'touching' requires contact with or pressure on the victim's skin. True or false?

 

Your score is