Criminal Law: Definition of Sexual

Sexual Offences and the Nature of ‘Sexual’

Defining ‘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:

  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 or the purpose of any person in relation to it (or both) it is sexual.’

The Court of Appeal in R v H [2005] All ER (D) 16 interpreted this provision to mean that an act is ‘sexual’ if:

  1. A reasonable person would consider the act inherently and unambiguously sexual by nature; or
  2. 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 [2006] EWCA Crim 575.


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Sexual Offences Against the Person Quiz

Test yourself on the principles governing the sexual offences.

1 / 21

What three elements must the prosecution prove to establish rape?

2 / 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?

 

3 / 21

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

4 / 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?

5 / 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?

 

6 / 21

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

7 / 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?

 

8 / 21

Can a drunk person consent to a sexual act?

9 / 21

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

10 / 21

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

11 / 21

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

12 / 21

In which two circumstances is an act is sexual?

13 / 21

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

 

14 / 21

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

15 / 21

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

 

16 / 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?

 

17 / 21

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

18 / 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?

19 / 21

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

20 / 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?

 

21 / 21

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

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