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:

‘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 [2005] 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.

Sexual Offences Against the Person Quiz

Test yourself on the principles governing the sexual offences.

1 / 21

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

2 / 21

Can a drunk person consent to a sexual act?

Yes, in all cases

Yes, but it depends on the level of drunkenness

3 / 21

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

That the victim was under 16 (but over 13), did not consent and the defendant did not reasonably believe they were at least 16

That the victim was under 16 (but over 13) and the defendant did not honestly believe they were at least 16

That the victim was under 16 (but over 13) and did not consent

That the victim was under 16 (but over 13) and the defendant did not reasonably believe they were at least 16

That the victim was under 16 (but over 13)

4 / 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?

5 / 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?

No, because Kevin reasonably believed Amanda was 16

No, because Kevin had a reasonable belief in consent

No, because Kevin honestly believed Amanda was 16

Yes

No, because Kevin is also under 13

6 / 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?

7 / 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?

No, because Kevin honestly believed Amanda was 16

Yes

No, because Kevin reasonably believed Amanda was 16

No, because Kevin had a reasonable belief in consent

No, because Kevin is also under 16

No, because Amanda consented

8 / 21

What three elements must the prosecution prove to establish rape?

Intention to penetrate or subjective recklessness

Lack of honest belief in consent

Non-consensual penetration of another person’s vagina, anus or mouth with any body part

Intention to penetrate

Lack of reasonable belief in consent

Non-consensual penetration of another person’s vagina, anus or mouth with the defendant’s penis

9 / 21

In which two circumstances is an act is sexual?

When a reasonable person would think the act is inherently sexual

When the defendant is aware that the act is sexual or foresees that other may perceive it as sexual

When the victim perceives the act as sexual

When a reasonable person would think the act is sexual because of the circumstances or any person's purposes

When the defendant intends the act to be sexual

10 / 21

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

Violence was used against the victim or a third-party or they were made to fear immediate violence

The victim did not positively communicate their consent

The victim was asleep or unconscious

The victim was non-consensually given a stupefying or overpowering substance

The defendant intentionally induced the victim to consent to the relevant act by impersonating another person

The victim could not communicate consent due to disability

The defendant intentionally deceived the victim as to the nature or purpose of the relevant act

The victim, but not the defendant, was unlawfully detained

The defendant intentionally induced the victim to consent to the relevant act by impersonating a person known personally to the complainant

11 / 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?

12 / 21

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

Yes, in all cases

No, never

Yes, but only if the victim specifically asked

13 / 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?

14 / 21

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

Understand relevant information

Know all relevant information about the defendant's attributes

Weigh up information

Know the defendant's STI status

Make choices without disinhibition

15 / 21

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

Intention to cause another to engage in sexual activity

Causing another to engage in non-consensual sexual activity

Lack of honest belief in consent

Causing another to engage in non-consensual sexual activity with the defendant

Lack of reasonable belief in consent

Intention to cause another to engage in sexual activity or subjective recklessness

16 / 21

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

That the victim was under 13, did not consent and the defendant did not reasonably believe they were at least 13

That the victim was under 13 and did not consent

That the victim was under 13 and the defendant did not reasonably believe they were at least 13

That the victim was under 13 and the defendant did not honestly believe they were at least 13

That the victim was under 13

17 / 21

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

Intention to penetrate

Lack of honest belief in consent

Non-consensual penetration of another person’s vagina, anus or mouth with the defendant’s penis

The penetration is sexual

Non-consensual penetration of another person’s vagina, anus or mouth with anything

Lack of reasonable belief in consent

Intention to penetrate or subjective recklessness

18 / 21

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

19 / 21

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

The victim could not communicate consent due to disability

The defendant intentionally induced the victim to consent to the relevant act by impersonating a person known personally to the complainant

The victim was asleep or unconscious

The defendant intentionally deceived the victim as to the nature or purpose of the relevant act

Violence was used against the victim or a third-party or they were made to fear immediate violence

The victim was non-consensually given a stupefying or overpowering substance

The victim did not positively communicate their consent

The victim, but not the defendant, was unlawfully detained

The defendant intentionally induced the victim to consent to the relevant act by impersonating another person

20 / 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?

21 / 21

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

Lack of reasonable belief in consent

Intention to touch or subjective recklessness

Lack of honest belief in consent

The touching is sexual

Intention that the touching be sexual or subjective recklessness

Intention to touch

Non-consensual touching

Your score is

Criminal Law: Definition of Sexual

Sexual Offences and the Nature of ‘Sexual’

Defining ‘Sexual’

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Sexual Offences and the Nature of ‘Sexual’

Defining ‘Sexual’

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