Assault

Question 1

What is assault by penetration?

Answer 1

Sexual Offences Act 2003, s2
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents

Question 2

What is the sentence for assault by penetration?

Answer 2

Triable on indictment
Life imprisonment

Question 3

What body parts does the penetration have to be by?

Answer 3

This offence involves penetration by any part of the body or anything else whatsoever (eg: finger, tongue, sex aid, bottle, living creature etc…).

Question 4

What body parts have to be penetrated?

Answer 4

Covers the insertion into the vagina or anus (though not the mouth) of anything, provided that the penetration is ‘sexual’.
CANNOT BE THE MOUTH

Question 5

Who can commit sexual assault by penetration?

Answer 5

It is gender neutral and can be committed by anyone of any gender.

Question 6

Can the evidential presumptions be applied to this offence- s75 and s76?

Answer 6

Yes- both apply.

Question 7

What is the definition of the term ‘sexual’?

Answer 7

s78 2003 Act- defines the term sexual and provides that penetration, touching or any other activity will be sexual if a reasonable person would consider that:
(a) whatever its circumstances or any person’s purpose in relation to it, it is sexual by its very nature; or
(b) because of its nature, it may be sexual and, because of its circumstances or the purpose of any person in relation to it, it is sexual

Question 8

What do (a) and (b) mean?

Answer 8

(a) covers things that a reasonable person would consider to be sexual (eg: masturbation and penetration by the penis)
(b) covers things that may or may not be considered sexual by a reasonable person depending on the circumstances or the intentions of the person carrying it out or both (eg: doctor in surgery/undertaking medical procedure and getting sexual gratification from it)
If the activity would not appear to a reasonable person to be sexual at all, then it will not meet either criterion and, irrespective of any sexual gratification the person might derive from it, the activity will not be ‘sexual’

Question 9

Does this cover weird or exotic fetishes?

Answer 9

Therefore weird or exotic fetishes that no ordinary person would regard as being sexual or potentially sexual will not be covered- (R v Court [1989] and R v Tabassum [2000]).
Unusual fetishes that are outside the understanding of reasonable people would not be regarded as fetishes eg: foot fetish of a shoe shop owner

Question 10

What offence is excluded from the definition of sexual?

Answer 10

It applies to all offences under Sexual Offences Act where this term is used, excluding:
- Sexual activity in a public lavatory (under s71)
- Sexual communication with a child (under s15A)
Both of these have their own definitions

Question 11

What about a non-consensual unwanted kiss where D forces his tongue into the mouth of V?

Answer 11

This could not be s2 offence, it has the potential to fall under s3 of the offence- sexual assault.

Question 12

What is sexual assault?

Answer 12

Sexual Offences Act 2003, s3
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents

Question 13

What is the sentence for sexual assault?

Answer 13

Triable either way
10 years’ imprisonment on indictment

Question 14

What is the definition of ‘touching’?

Answer 14

s79(8) states that touching includes:
- with any part of the body;
- with anything else
- through anything
- and in particular, touching amounting to penetration (this could include kissing)

Question 15

Can touching a person’s clothing be touching?

Answer 15

Touching for the purposes of the above offence includes touching a person’s clothing while they are wearing it. Therefore, where a man approached a woman and asked ‘Do you fancy a shag?’, grabbing at a pocket on her tracksuit bottoms as she tried to walk away, he was properly convicted of the s. 3 offence even though he did not touch her person (R v H [2005])

Question 16

Can the touching be reckless, or just intentional?

Answer 16

The conduct must be intentional (rather than reckless or accidental). It also has to be sexual.

Question 17

What is meant by reasonable belief?

Answer 17

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 3(2))

Question 18

Case- intent and sexual touching

Answer 18

AG ref [2020], D while travelling on a train, had kissed the victim, on the lips without her consent. At trial, D stated that the kiss had not been sexual. Rather, it had been a friendly reassuring gesture. The trial judge accepted submissions that it was a necessary ingredient of the offence for the prosecution to prove that D intended the touching to be sexual- COA disagreed

Question 19

Does D have to intend the touching to be sexual?

Answer 19

The statutory ingredients of the offence under s. 3 do not contain the requirement that the defendant intended the touching to be sexual
The scheme of the Act is that wherever an offence is committed against the victim by sexual touching, proof of sexual intention as part of the mens rea is not required

Question 20

Does the part of the body touched have to be a sexual organ?

Answer 20

The part of the body touched does not have to be a sexual organ or orifice

Question 21

How forceful must be the touching be?

Answer 21

There is no requirement for force or violence so the lightest touching will suffice

Question 22

Does touching include through V’s clothing?

Answer 22

R v H [2005]- held that it was not Parliament’s intention to preclude the touching of V’s clothing from amounting to a sexual ‘assault’

Question 23

What happens if the touching was not automatically sexual?

Answer 23

Where touching was not automatically by its nature ‘sexual’, the test under s. 78(b) applies
Trial judge asks the jury to determine whether touching was ‘sexual’ by answering 2 questions
1. would the jury, as 12 reasonable people, consider that the touching could be sexual and, if so
2. whether in all the circumstances of the case, they would consider that the purpose of the touching had in fact been sexual

Question 24

Does V need to be aware of the touching? Case?

Answer 24

The victim need not be aware of the touching
R v Bounekhla [2006]- accused surreptitiously took his penis out of his trousers and ejaculated onto a woman’s clothing when pressed up against her dancing in a club. If touching does not occur, the offence is not completed, although the circumstances may amount to an attempt. Nevertheless, it remains arguable that ejaculation onto a victim’s clothing without contact with any part of the accused’s body still constitutes a touching

Question 25

What is causing sexual activity without consent?

Answer 25

Causing a Person to Engage in Sexual Activity without Consent—Sexual Offences Act 2003, s4
(1) A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents

Question 26

What does the offence involve?

Answer 26

If it involves penetration: of the victim’s anus or vagina, of victim’s mouth with penis, of any other person’s anus or vagina with a part of victim’s body or by the victim, or of any person’s mouth by victim’s penis—triable on indictment; life imprisonment
The offence is committed when A causes B to engage in sexual activity without B’s consent, whether or not A also engages in it and whether or not A is present

Question 27

Example of this offence.

Answer 27

The offence can involve a number of permutations, for example a woman making a man penetrate her, a man forcing someone else to masturbate him, a woman making another woman masturbate a third person or even an animal

Question 28

What is the sentence for causing a person to engage in sexual activity without consent?

Answer 28

Triable on indictment- life imprisonment if penetration is involved otherwise triable either way- 10 years’ imprisonment on indictment

Question 29

Case involving causing a person to engage in sexual activity without consent

Answer 29

R v H [2008]- an animal was used in the commission of the offence where the visibly mentally disabled V was forced, among other things, to be penetrated in the anus by a dog. It would include causing a person to act as a prostitute. Apart from D and V, there may be others involved who also consent—they may be liable for aiding and abetting under the right circumstances

Question 30

What does the term activity mean? Case?

Answer 30

The term ‘activity’ is not defined and is capable of being given a wide interpretation, although it must have actually taken place.
The activity engaged in must be ‘sexual’ in accordance with s. 78. It can include engaging someone in a conversation of a sexual nature (R v Grout [2011])

Question 31

Is force necessary to complete the offence?

Answer 31

Force is not necessary. The offender needs to cause or bring about unwanted sexual activity in some way.

Question 32

Does D need to be present when he causes V to engage in unwanted sexual activity?

Answer 32

No- does not need to be present at the time of the sexual activity so long as they cause V to engage in it.
eg: sexual activity being streamed on the internet

Question 33

Does the sexual activity need to even occur?

Answer 33

Yes- the act does need to take place. It also must be sexual.

Question 34

Do the evidential and conclusive presumptions apply under s75 and s76?

Answer 34

Yes! In the requirement of absence of consent, the presumptions will apply.

Question 35

What is the difference between rape and causing a person to engage in sexual activity without consent?

Answer 35

Both offences deal with vaginal, anal and oral penetration
This offence is wider than rape as rape can only be committing by a man, as a principal, and does not involve penetration with an object
Offence can be committed by and against persons of either sex and includes cases of ‘female rape’- A causes B to penetrate her vagina with his penis
Offence makes A criminally liable for causing B to engage in sexual activity where B cannot himself be convicted of any offence because he has a defence such as duress or is under the age of criminal responsibility

Question 36

What are the sections for rape and other offences against children under 13?

Answer 36

s5- Rape (triable on indictment- life imprisonment)
s6- Assault by penetration (triable on indictment- life imprisonment)
s7- Sexual Assault by Touching (triable either way- indictment 14 years, summarily 6 months’ imprisonment and/or fine)
s8- Causing or inciting activity (triable either way- indictment 14 years, summarily 6 months’ imprisonment and/or fine)

Question 37

What are the essential elements of the offences? Common elements

Answer 37

1. The victim is a child under the age of 13
2. A child under 13 cannot consent in law to such an activity- It doesn’t matter if D had any reasonable belief as to the child’s age.
   Once the AR is proved, no issue of consent to the activity arises.

Question 38

What else needs to be proved for the offences?

Answer 38

Nothing! Just needs to be proved that the victim was under 13 and D committed the AR!
It is a strict liability offence.

Question 39

What did COA hold in R v Walker on s8?

Answer 39

R v Walker [2006]- COA held that s8 of the Act created two offences: (a) intentionally causing; and (b) intentionally inciting a child under 13 to engage in sexual activity.

Question 40

What is s8 centred on?

Answer 40

The offence is centred on the concept of incitement and the acts had to be intentional or deliberate, but it was not a necessary ingredient for incitement of sexual activity that the defendant had intended the sexual activity to take place.

Question 41

Does the activity need to take place?

Answer 41

An individual can commit an offence of incitement even if the activity he/she is encouraging, etc. does not take place