Sexual offences Flashcards
Rape
Rape – s. 1 Sexual Offences Act 2003
Intentionally penetrate the vagina (including vulva), anus or mouth with a penis while the victim does not consent to the penetration and the defendant does not reasonably believe the victim consents.
Only persons with a penis can commit rape (penis can be surgically constructed).
Assault by penetration
s. 2 Sexual Offences Act 2003
- Intentionally
- penetrate the vagina or anus
- with a part of their body or object
- the penetration is sexual
- the victim does not consent
- the defendant does not reasonably believe the victim consents.
Sexual: a reasonable person would consider the act is sexual by its very nature or under the circumstances is sexual.
Sexual assault by touching
s. 3 Sexual Offences Act 2003
- Intentionally
- touching another person
- the touching is sexual
- the victim does not consent
- the defendant does not reasonably believe the victim consents.
Touching: touching with any part of the body or anything else (e.g. object) or through anything (e.g. clothing). The slightest of touch is enough for this offence to be committed. Any part of the body can be touched (not just intimate parts) as long as the touching is sexual (objective test).
Causing a person to engage in sexual activity without consent
s.4 Sexual Offences Act 2003
Intentionally cause another person to engage in a sexual activity, the victim does not consent and the defendant does not reasonable believe they consent.
The person causing the activity does not have to be the recipient of the activity. The person causing the activity also does not need to be present at the time of it.
R v Grout [2011] EWCA Crim 299 - engaging a person in sexual conversation counts
Consent
s. 74 Sexual Offences Act 2003
- The person agrees by choice and;
- The person has the freedom to choose (e.g. their consent is not induced via fear, fraud, duress of threats) and;
- The person has the capacity to choose (reasoned, informed decision)
Evidential presumptions
- The defendant committed the actus reus
- At the time of doing actus reus any of these circumstances existed:
a. Violence was used against the victim or the victim was caused to fear immediate violence against the at the time or immediately before the actus reus (result is important, the victim has to actually be in fear)
b. Immediately before or at the time of the actus reus, anybody was causing the victim to fear that either violence was being used or immediate violence would be used against another (the other person at risk of violence does not need to be aware of this)
c. Victim was unlawfully detained and defendant was not unlawfully detained at the time of the actus reus
d. Victim was asleep or unconscious
e. Due to physical disability the victim could not communicate their consent
f. Victim was administered a substance without consent that would have stupefied or caused the victim to be overpowered at the time of the actus reus
The defendant knew these circumstances existed
Conclusive presumptions
Conclusive presumption 1 – defendant intentionally deceived the victim as to the nature or purpose of the act (did the victim know what they were doing and why?)
Conclusive presumption 2 – the defendant intentionally impersonated somebody known personally to the victim (so does not include celebrities)
Exposure
s.66 Sexual Offences Act 2003
A person intentionally exposes their genital and intends (offence complete here) for another to see them and feel alarm or distress due to it.
Genitals: buttocks and breasts are not included
Where? - public and private place
The exposure does not have to be for the purpose of sexual gratification
Outraging public decency
Common law
It’s an offence to deliberately commit an act of a nature that is either lewd, obscene or disgusting and outrage public decency.
R v May [1989] Cr App R 157 à It is not necessary to prove anyone was upset by that act
The act itself must be lewd, not just the motives behind it. Just leaving contact details on a toilet wall is no offence but leaving contact details with a lewd text beside it is an offence.
R v Walker [1996] 1 Cr App R 111 à the act must be committed where it might be seen by the public (a balcony of a public house which the public can view is included for example)
A person must grossly transgress accepted limits of decency. Simply being naked in a park does not suffice but masturbating in the park would.
Administering a substance with intent
S.63 Sexual Offences Act 2003
A person
- intentionally
- administers a substance to another person
- or causes a substance to be taken by another person.
- the accused knows the victim did not consent to the administration - the accused’s intention is to stupefy or overcome the victim
- to enable any person to carry out a sexual activity with the victim.
What if the offender intends to administer a substance capable of stupefying but makes a mistake and administers a harmless substance? - offence is still complete
Sexual activity with a person with a mental disorder
s.30 Sexual Offences Act 2003
A person
- Intentionally
- sexually touches another
- who is unable to refuse due to their suffering from a mental disorder
- the offender knows or should have known that the victim had such a disorder and that because of it they were unable to refuse.
Two situations where a person is unable to refuse
1. Lack of capacity to choose due to lack of understanding of the nature or consequences of the touching; or
2. Unable to communicate such a choice
Victim anonimity
S.1 Sexual Offences Amendment Act 1992
Details of the:
- Name
- Address
- Still or moving images
Of a victim/complainant in relation to most sexual offences shall not be:
- Published in England and Wales (or for reception in England and Wales) in a written publication available to the public; or
- Included in a relevant programme for reception in England and Wales
For the duration of the victim/complainant’s lifetime
Restrictions are placed on revealing the victim’s or complainant’s identity when reporting cases and trials. Restrictions last of the victim’s lifetime.
Victim anonymity can be waived if:
· This is required for the purpose of:
o Inducing persons likely to be needed as witnesses at trial to come forward; or
o obtaining evidence in support of the appeal; and
· that the defendant is likely to suffer substantial prejudice/injustice if victim anonymity is maintained
