Consent
What is consent?
s74 Sexual Offences Act 2003
A person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Must be true consent- cannot be gained through fear or threats. Not having freedom and capacity may be something like a person with a mental disability, so its not true consent.
Consent
The situation whereby a person who is HIV positive and is aware of his condition…
- If the accused makes no mention of his condition this will NOT be rape. However, it may constitute an offence under the Offences Against the Person Act 1861 (s18/20)
- If the accused positively assures the complainant that he is not HIV positive (lied) this WOULD constitute rape.
Conditional consent
In some cases when considering consent under s74, consent was considered not to be true consent, either because of a condition upon which consent was given was not complied with or because of a material deception.
What three sets of circumstances exist which may vitiate consent where the condition is breached?
- Assange v Sweden: not wearing a condom when this was part of the consent.
- R(F) v DPP: ejaculation intentional/accidental - the former vitiating consent and the latter not.
- McNally v R: Deception can vitiate V’s consent if it removes their freedom of choice, in this case, lying about being a male when actually female. Deception about something like wealth (saying they’re rich and they turn out not to be), etc. is insufficient.
Consent
Sections 75 and 76 of the Sexual Offences Act 2003 allow presumptions to be made in relation to the absence of consent. They apply to offences under:
Rape (s 1)
Assault by penetration (s 2)
Sexual assault (s 3)
Causing another person to engage in sexual activity without consent (s 4)
Consent
What are evidential presumptions about consent?
s75 Sexual Offences Act 2003
Basically, that circumstances themselves show that the victim did not consent, e.g a victim who is asleep cannot verbalise their refusal that they do not consent.
If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented.
Up to the defendant to prove the victim consented
Consent
Evidential presumptions
(2) The circumstances are that—
s75 Sexual Offences Act 2003
(a) Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) The complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
Consent
What are conclusive presumptions about consent?
s76 Sexual Offences Act 2003
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) That the complainant did not consent to the relevant act, and
(b) That the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Consent
Conclusive presumptions
It is important to emphasise the fact that s76 deals with situations where the defendant either:
- Deceives the victim regarding the nature and purpose of the act (e.g pretending that inserting a finger into vagina saying it’s for medical reasons).
- Induces the victim to consent to the relevant act by impersonating a person KNOWN personally to the complainant (e.g pretending to be husband).
Consent
Common examples of what would not constitute conclusive presumptions?
- Deceiving someone into having sex more frequently than they would have done otherwise (hasn’t been deceived).
- Making a false promise to marry to encourage someone to have sex, nor a false promise to pay in exchange for sexual intercourse.
Sexual Assault
Assault by penetration
s2 Sexual Offences Act 2003
(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 (e.g dildo),
(b) the penetration IS sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
Penalty:
- Indictment– Life Imprisonment
Sexual Assault
What parts of the body does assault by penetration apply to?
Vagina or anus
NOT the mouth.
Sexual Assault
What is the definition of the term “sexual”?
s78 Sexual Offences Act 2003
Penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual (e.g penetrative sex/ masturbation).
(b) 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 (e.g Dr. examination can be non-sexual but if done in a certain way then…).
Sexual Assault by Touching
s3 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) he INTENTIONALLY touches another person (B) (can be through clothing),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years.
Sexual Assault
What is the definition of the term “touching”?
Section 79(8) states that touching includes touching:
- With any part of the body.
- With anything else.
- Through anything.
The part of the person touched does not have to be a sexual organ or orifice, can be clothing. A jury must ask themselves (as reasonable people) two questions:
- Could the touching be sexual?
- Has the touching been sexual?
Causing a person to engage in sexual activity without consent
s4 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity (can be a conversation),
(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.
Aggravating factors:
- Large age difference between offender and victim
- General vulnerability of victim
- Use of weapons to commit the offence
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years.
Rape of a child under 13
s5 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.
Penalty:
- Indictment– Life Imprisonment
Assault of a child under 13 by penetration
s6 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person with a part of his body or anything else,
(b) the penetration is sexual, and
(c) the other person is under 13.
Penalty:
- Indictment– Life Imprisonment
Sexual assault of a child under 13 without penetration
s7 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally touches another person,
(b) the touching is sexual, and
(c) the other person is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years.
Causing or inciting a child under 13 to engage in sexual activity
s8 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
(c) B is under 13.
(2) A person guilty of an offence under this section, if the activity caused or incited involved—
(a) penetration of B’s anus or vagina,
(b) penetration of B’s mouth with a person’s penis,
(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or
(d) penetration of a person’s mouth with B’s penis,
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 then LIFE)
The Sexual Offences (Amendment) Act 1992 provides what to a victim/ complainant of most sexual offences?
Anonymity for their lifetime, nothing may be published which may give rise to identification– it applies to all sexual offences under part 1 of the Sexual Offences Act 2003 (such as rape, assault by penetration, sexual assault by touching etc) as well as attempts and conspiracy to commit such acts.
It does not apply to offences dealing with sex with an adult relative or sexual activity in a public lavatory.
Under s3 of The Sexual Offences (Amendment) Act 1992, the prohibition on publicity may be lifted by order of the court if…
- Publicity is required by the accused so that witnesses will come forward and the conduct of the defence is likely to be seriously prejudiced if the direction is not given; or
- The trial judge is satisfied that imposition of the prohibition imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction.
Sexual activity with a child
s9 Sexual Offences Act 2003
(1) A person aged 18 OR OVER (A) commits an offence if—
(a) he INTENTIONALLY touches another person (B),
(b) the touching is SEXUAL, and
(c) either—
(i) B is under 16 (proof of age required) and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13 (no defence available).
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 = 14 years)
Causing or inciting a child under 16 to engage in sexual activity
s10 Sexual Offences Act 2003
(1) A person aged 18 or over (A) commits an offence if—
(a) he INTENTIONALLY ‘causes’ or ‘incites’ another person (B) to engage in an activity,
(b) the activity is SEXUAL, and
(c) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 = 14 years)
Engaging in sexual activity in the presence of a child
s11 Sexual Offences Act 2003
(1) A person aged 18 or over (A) commits an offence if—
(a) he INTENTIONALLY engages in an activity,
(b) the activity is SEXUAL,
(c) for the purpose of obtaining sexual gratification, he engages in it—
- (i) when another person (B) is present or is in a place from which A can be observed, and
- (ii) knowing or believing that B is aware, or intending that B should be aware (doesn’t actually have to be a witness), that he is engaging in it, and
(d) either—
- (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
- (ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
Causing a child to watch a sexual act
s12 Sexual Offences Act 2003
(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining SEXUAL GRATIFICATION, he INTENTIONALLY causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(b) the activity is SEXUAL, and
(c) either—
- (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
- (ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
What sexual offences can only be committed by a person over 18?
Sexual activity with a child (s9)
Causing or inciting a child under 16 to engage in sexual activity (s10)
Engaging in sexual activity in the presence of a child (s11)
Causing a child to watch a sexual act (s12)
What does Section 13 of the Sexual Offences Act 2003 allow for?
s13 Sexual Offences Act 2003
Allows s9, 10, 11 and 12 offences to be committed by a child/ young person.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 5 years
Arranging or Facilitating the Commission of a Child Sex Offence
s14 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) He intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and
(b) Doing it will involve the commission of an offence under any of sections 9 to 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years
Meeting a Child Following Sexual Grooming
s15 Sexual Offences Act 2003
A person aged 18 or over (A) commits an offence if—
(a) A has met or COMMUNICATED with another person (B) on ONE OR MORE occasions and subsequently—
(i) A intentionally meets B,
(ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
(iii) B travels with the intention of meeting A in any part of the world,
(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,
(c) B is under 16, and
(d) A does not reasonably believe that B is 16 or over.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
What does the offence of Arranging or Facilitating the Commission of a Child Sex Offence protect?
Designed to protect those looking after the welfare of the child:
- Protecting the child from sexual diseases.
- Protecting the child’s physical safety.
- Preventing the child from falling pregnant.
- Promoting the child’s wellbeing by giving of advice.
Because it states “Doing it will involve the commission of an offence under any of sections 9 to 13”…
For example, it protects people like healthcare workers supplying condoms to those under 16 years of age who are planning on having sex and need protecting prom pregnancy or disease
Meeting a Child Following Sexual Grooming
s15 Sexual Offences Act 2003
A person aged 18 or over (A) commits an offence if—
(a) A has met or COMMUNICATED with another person (B) on ONE OR MORE occasions and subsequently—
(i) A intentionally meets B,
(ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
(iii) B travels with the intention of meeting A in any part of the world,
(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,
(c) B is under 16, and
(d) A does not reasonably believe that B is 16 or over.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
Sexual Communication with a Child
s15A Sexual Offences Act 2003
(1) A person aged 18 or over (A) commits an offence if—
(a) For the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b) The communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 2 years
Abuse of position of trust offences
A person commits an offence under s16 to 19 when they are 18+ and are in a ‘position of trust’ (e.g detained and in a young offenders institution, foster care or in a hospital).
s16: Sexual activity with a child
s17: Causing/ inciting a child to engage in sexual activity
s18: Sexual activity in the presence of a child
s19: Causing a child to watch a sexual act
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 5 years
Sexual Activity with a Child Family Member
s25 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) He intentionally touches another person (B),
(b) The touching is sexual,
(c) The relation of A to B is within section 27 (must be proved),
(d) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
(e) Either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 = 14 years)
- If defendant is under 18 (I = 5 yrs, S = 6 mths)
For the purposes of Familial Sex Offences, what constitutes relevant family relationships?
s27 Sexual Offences Act 2003
- Parent
- Grandparent
- Brother/ Sister
- Half-brother/ sister
- Aunt/ Uncle
- Foster parent
Inciting a Child Family Member to Engage in Sexual Activity
s26 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) He intentionally incites another person (B) to touch, or allow himself to be touched by, A,
(b) The touching is sexual,
(c) The relation of A to B is within section 27,
(d) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
(e) Either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 = 14 years)
- If defendant is under 18 (I = 5 yrs, S = 6 mths)
Paying for Sexual Services of a Child
s47 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) he intentionally obtains for himself the sexual services of another person (B),
(b) before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment, and
(c) either—
(i) B is under 18, and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 14 years
- If victim under 16 and (2) applies = 14 years
- If victim under 13 = Life Imprisonment
Causing, Inciting, Arranging or Facilitating the Sexual Exploitation of Children
Sexual Offences Act 2003
A person commits an offence if…
s48: Intentionally causes or incites another person to be sexually exploited in any part of the world.
s49: Intentionally controls any of the activities of another person relating to their sexual exploitation in any part of the world.
s50: Intentionally arranges or facilitates sexual exploitation in any part of the world of another person.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 14 years
s116 of the Anti-social Behaviour, Crime and Policing Act 2014 confers a power on a police officer, of at least rank inspector, to do what?
Serve a notice on the owner, operator or manager of a hotel that the officer reasonably believes has been or will be used for the purposes of child sexual exploitation or conduct preparatory or connected with it.
(5) The only information a constable may require…
(a) Guests’ names and addresses;
(b) Other information about guests that—
(i) Is specified in regulations made by the Secretary of State, and
(ii) Can be readily obtained from one or more of the guests themselves.
What legislation allows for the prosecution of British citizens and UK residents for sexual offences against children committed abroad?
s72 and sch 2 of the Sexual Offences Act 2003
(1) If—
(a) A United Kingdom national does an act in a country outside the United Kingdom, and
(b) the act, if done in England and Wales would constitute a sexual offence to which this section applies…
…the United Kingdom national is guilty in England and Wales of that sexual offence.
Sex with an Adult Relative: Penetration
s64 Sexual Offences Act 2003
(1) A person aged 16 or over (A) commits an offence if—
(a) he intentionally penetrates another person’s vagina or anus with a part of his body or anything else, or penetrates another person’s mouth with his penis,
(b) the penetration is sexual,
(c) the other person (B) is aged 18 or over,
(d) A is related to B in a way mentioned in subsection (2), and
(e) A knows or could reasonably be expected to know that he is related to B in that way.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 2 years and/ or fine.
Sex with an Adult Relative: Consenting to Penetration
s65 Sexual Offences Act 2003
(1) A person aged 16 or over (A) commits an offence if—
(a) another person (B) penetrates A’s vagina or anus with a part of B’s body or anything else, or penetrates A’s mouth with B’s penis,
(b) A consents to the penetration,
(c) the penetration is sexual,
(d) B is aged 18 or over,
(e) A is related to B in a way mentioned in subsection (2), and
(f) A knows or could reasonably be expected to know that he is related to B in that way.
Offences Involving Photographs and Images of Children
Defining a Photograph?
s7 of the Protection of Children Act 1978
- Includes indecent films, photographs (including the negatives/ data stored on a computer or disc), a tracing or other image, any form of video recording.
- Pseudophotograh means an image, whether made by computer graphics or otherwise, which appears to be a photograph. Making includes browsing/downloading on the internet.
- Including computer imagery comprising parts of an adult form but it should be noted that the overall impression conveyed is that the person shown is a child.
Key Case Law Related to Indecent Images
R v Bowden (2001)- Downloading images from the internet counts as making a photograph.
R v Smith and Jayson (2002)- Pseudo-photographs include browsing through indecent images of children on the internet.
R v Harrison (2007)- Storing ‘pop-ups’ or downloading onto a hard drive indecent images of children counts as possession.
R v Dooley (2005)- Where there is knowledge that downloaded images are likely to be accessed by others, it would be considered ‘with a view to distribute’.
Producing and distributing indecent photographs of children
s1 Protection of Children Act 1978
(a) To take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child (under 18); or
(b) To distribute (including offer to others) or show such indecent photographs [or pseudo-photographs]; or
(c) To have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or
(d) To publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
Producing and distributing indecent photographs of children
s 1 of the Protection of Children Act 1978
Defences
- Had a legitimate reason for distributing, showing or having possession of the photographs or pseudo-photographs.
- The defendant did not see the photographs or pseudo-photographs, or saw them and did not know they were indecent or have any cause to suspect them to be indecent.
Some photographs of children may appear indecent but are not indecent in terms of the legislation…
s1 of the Protection of Children Act 1978
Exception 1A is that the photograph was of a person aged 16 or over, and at the time of the alleged offence, the person and the suspect were married or lived together as partners in an enduring family relationship.
Exception 1B is that the photograph is for use in criminal investigation of proceedings, in any part of the world.
Possession of indecent photograph of child
s160 Criminal Justice Act 1988
It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.
(2) …it shall be a defence for him to prove—
(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 5 years
Possession of indecent photograph of child
What is the ‘Marriage Defence’?
s160A Criminal Justice Act 1988
The defendant must prove:
- The child was over 16 at the time of the photos.
- That they were married, or civil partners of each other or lived together as partners in an enduring family relationship.
- That the child consented (or they reasonably believed that they consented).
- It was shown or distributed to no one other than the child.
- The child consented to the possession (and no one else was in the photo).
Possession of Prohibited Images of Children
s62 Coroners and Justice Act 2009
(1) It is an offence for a person to be in possession of a prohibited image of a child.
(2) A prohibited image is an image which—
(a) is pornographic,
(b) falls within subsection 6 (focus on genitals, sex act, beastiality), and
(c) is grossly offensive, disgusting or otherwise of an obscene character
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 3 years
Defence for Possession of Prohibited Images of Children
s64 Coroners and Justice Act 2009
(1) It is a defence for the person to prove any of the following matters—
(a) that the person had a legitimate reason for being in possession of the image concerned;
(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;
(c) that the person—
(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii) did not keep it for an unreasonable time.
Offences Involving Photographs and Images of Children
Meaning of child
A ‘child’ means a person under the age of 18/ the image is showing a predominant impression of a child despite some characteristics not being so.
Possession of a Paedophile Manual
s69 Serious Crime Act 2015
(1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 3 years and/ or fine.
Defences of Possession of a Paedophile Manual
s69 Serious Crime Act 2015
(2) It is a defence for a person (D) charged with an offence under this section—
(a) To prove that D had a legitimate reason for being in possession of the item;
(b) To prove that—
(i) D had not read, viewed or (as appropriate) listened to the item, and
(ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or
(c) To prove that—
(i) The item was sent to D without any request made by D or on D’s behalf, and
(ii) D did not keep it for an unreasonable time.
What are the main criminal offences that seek to prevent the possession, creation and distribution of indecent images of children?
s1 Protection of Children Act 1978: Offence for a person to take, permit to be taken, make distribute or show, or have in his/her possession with a view to showing or distributing any indecent photograph (or pseudo-photograph) of a child.
s160 Criminal Justice Act 1988: Offence to possess an indecent photograph or pseudo-photograph of a child.
s62 Coroners and Justice Act 2009: Offences to possess a prohibited image of a child
What is the definition of a ‘mental disorder’?
s1(2) Mental Health Act 1983
Any disorder or disability of the mind so a person with learning difficulties finds protection in the Act.
Sexual Activity with a Person with a Mental Disorder
s30 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) He intentionally touches another person (B),
(b) The touching is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
(2) B is unable to refuse if—
(a) He lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) He is unable to communicate such a choice to A.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 14 years
- Section (3)– Life Imprisonment.
Causing or Inciting a Person with a Mental Disorder to Engage in Sexual Activity
s31 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) He intentionally causes or incites another person (B) to engage in an activity (can be with someone else),
(b) The activity is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 14 years
- Section (3)– Life Imprisonment.
Sexual Activity in Presence of Mentally Disordered Person
s32 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) He intentionally engages in an activity,
(b) The activity is sexual,
(c) For the purpose of obtaining sexual gratification, he engages in it—
(i) When another person (B) is present or is in a place from which A can be observed, and
(ii) Knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d) B is unable to refuse because of or for a reason related to a mental disorder, and
(e) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 10 years
Causing Person with Mental Disorder to Watch Sexual Act
s33 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) For the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(b) The activity is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse (no need to prove unable to refuse).
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 10 years
Inducement, threat or deception to procure sexual activity with a person with a mental disorder
s34 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) with the agreement of another person (B) he intentionally touches that person,
(b) the touching is sexual,
(c) A obtains B’s agreement by means of an inducement offered or given, a threat made or a deception practised by A for that purpose,
(d) B has a mental disorder, and
(e) A knows or could reasonably be expected to know that B has a mental disorder.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 14 years
- Section (3)– Life Imprisonment.
What are the main offences?
s30: Sexual Activity with a Person with a Mental Disorder
s31: Causing or Inciting a Person with a Mental Disorder to Engage in Sexual Activity
s32: Sexual Activity in Presence of Mentally Disordered Person
s33: Causing Person with Mental Disorder to Watch Sexual Act
s34: Inducement, threat or deception to procure sexual activity with a person with a mental disorder
Administering Substance with Intent (Date Rape Offence)
s61 Sexual Offences Act 2003
(1) A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B)—
(a) Knowing that B does not consent, and
(b) With the INTENTION of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 10 years.
- What situations would an offence of administering substance with intent apply (s61)?
- When would it not apply?
- A spiking B’s soft drink with alcohol where B did not know he/she was consuming alcohol.
- This is an offence of ‘intent’ therefore if someone saw the substance being put in the drink and intervened before the victim drank it, the offence is still made out. - It would not cover A encouraging B to get so drunk that A could have sex with B.
Committing Criminal Offence with Intent to Commit a Sexual Offence
s62 Sexual Offences Act 2003
A person commits an offence under this section if he commits any offence with the intention of committing a relevant sexual offence.
This covers virtually all regularly occurring sexual offences, including aiding, abetting, counselling or procuring an offence. It does not include offences under the Protection of Children Act 1978.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 10 years.
- Where the offence committed is kidnapping or false imprisonment = Indictment - Life imprisonment.
Trespass with Intent to Commit a Sexual Offence
s62 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) He is a trespasser on any premises (inc. tent),
(b) He intends to commit a relevant sexual offence on the premises, and
(c) He knows that, or is reckless as to whether, he is a trespasser.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 10 years.
Exposure
s66 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) He intentionally exposes his genitals, and
(b) He intends that someone will see them and be caused alarm or distress (no need for sexual gratification).
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 2 years.
Outraging Public Decency
Common Law
It is an offence at common law to commit an act of lewd, obscene or disgusting nature and outrage public decency.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– Unlimited.
Give an example of when motives/ intentions cannot amount to outraging Public Decency would not be amounted to?
If the defendant’s acts involved leaving messages that were not in themselves obscene in public toilets, his motives (to induce young boys to engage in gross indecency with him) did not bring his actions under this offence.
Voyeurism
s 67(1) Sexual Offences Act 2003
a) A person commits voyeurism if for the purpose of gaining sexual gratification he/ she observes another person doing a private act
b) …he\she knows that the other person does not consent to being observed for [the purposes of] sexual gratification.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 2 years.
Voyeurism using live link equipment is covered under what legislation?
s 67(2) Sexual Offences Act 2003
Person A commits an offence if he/she operates an equipment with the intention of enabling another person B to observe, for sexual gratifications, a third person C doing a private act.
Person A must know that C has not consented to this.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 2 years.
The recording of images in relation to voyeurism is covered under what legislation?
s 67(3) Sexual Offences Act 2003
Similar to s 67(2) except that the acts are recorded and not just transmitted.
Aggravating factors include recording of images in relation to voyeurism to then circulate these images or recordings, particularly when motivated by commercial gain (Sentencing Guidelines Council, 2007).
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 2 years.
Installing equipment and adapting structures for voyeurism is covered under what legislation?
s 67(4) Sexual Offences Act 2003
The offence is committed even if the installation of adaptation is never used.
A structure can include a tent, vehicle, vessel, or some other temporary or moveable structure.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 2 years.
Sexual activity in a public lavatory
s71 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) He is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,
(b) He intentionally engages in an activity, and,
(c) The activity is sexual.
Penalty:
- Summarily– 6 months and/ or fine.
