Sexual Offences and the Nature of ‘Sexual’
Section 78 of the Sexual Offences Act 2003 states that penetration, touching or any other activity is sexual if a reasonable person would consider that:
- ‘Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or’
- ‘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.’
The Court of Appeal in R v H  All ER (D) 16 interpreted this provision to mean that an act is ‘sexual’ if:
- A reasonable person would consider the act inherently and unambiguously sexual by nature; or
- A reasonable person would consider that the act, by its nature, might be sexual (but is not unambiguously so) and due to the circumstances or purposes of any person involved, it is in fact sexual.
Because the test is objective, it is possible for an act to be sexual even though the defendant does not have any sexual intentions: R v AJ  EWCA Crim 575.