Sexual Offences
Sexual Offences encompasses a variety of crimes that include, but are not limited to, rape, assault by penetration, sexual assault, causing a person to engage in sexual activity without consent and sexual offences against children. It almost goes without saying that there are a very large number of sexual offences that could be considered.
Rape
The definition of rape is set out in section 1 SOA 2003, which provides:
- A person (A) commits and offence if –
- he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- B does not consent to the penetration, and
- A does not reasonably believe that B consents
- Whether a belief is reasonable is to be determined having regard to all the circumstances,
- including and steps A has taken to ascertain whether B consents.
- Sections 75 and 76 apply to an offence under this section.
Sections 75 and 76 address certain presumptions as to consent and will be considered below.
- The offence can be broken down into four elements:
- Penetration with the defendant’s penis of the complainant’s vagina, anus or mouth;
- The complainant did not consent;
- The penetration was intentional;
- The defendant did not reasonably believe that complainant consented.
The first two elements contain the actus reus of the offence, the second two the mens rea.
Actus Reus
Penetration
The first part of the actus reus of rape makes it clear that it is an offence that can only be committed by a man. However, the fact that the penetration of the anus or mouth can constitute rape makes it clear that the offence can also be committed against a man.
Absence of Consent
Consent is a complex issue in relation to rape. This is for two reasons. Firstly, consent forms part of the actus reus and the mens rea of the offence, and therefore it is important to distinguish between the two elements. Secondly, the notion of what constitutes consent is largely a jury question, but is one upon which certain guidance must often be given by the trial judge.
Case Law
R V. Virk (2008)
Kirk clearly demonstrates the complexity in respect of the nature of consent. The complainant was a vulnerable and destitute 14-year-old girl who had sexual intercourse with the defendant in return for money that she could use to buy food. The Court of Appeal upheld the defendant’s rape conviction despite there not being any obvious pressure placed on the complainant to consent.
This judgment clearly demonstrates that undue pressure may take any form. The fact that the complainant believed that she had little choice, because of her circumstances, to submit to the sexual intercourse was sufficient to demonstrate that she could not choose freely, and therefore did not consent.
Mens Rea
Intention to Penetrate
This element of the mens rea is ordinarily easily satisfied. For these purposes, all that is required is that the act of penetration is a deliberate or voluntary one. It would clearly be difficult for a defendant to suggest that penetration was accidental.
No Reasonable Belief in Consent
The second mens rea element returns to the notion of consent in that the prosecution must demonstrate that the defendant did not reasonably believe that the complainant was consenting at the time of the penetration.
Evidential Presumptions
These presumptions create a degree of difficulty in that where one arises, a defendant must produce sufficient evidence to show that the presumption is rebuttable.
Assault by Penetration
Section 2 of SOA 2003 provides:
A person(A) commits an offence if –
- he intentionally penetrates the vagina or anus of another person (B) with a part of his body
- or anything else,
- the penetration is sexual,
- B does not consent to the penetration, and
- A does not reasonably believe that B consents.
The mens rea of this offence is identical to that discussed above in relation to rape, and will therefore be considered here. The actus reus differs in two respects. The first difference is easily identified, in that
penetration can be with any part of the defendant’s body or anything else. Additionally, penetration of the mouth does not apply to this offence. The second actus reus element requires the penetration to be sexual.
Case Laws
R V. H
The defendant had pulled at the complainant’s tracksuit bottoms and had said to her ‘Do you fancy a shag?’ The trial judge held that the comments made by the defendant in connection with his actions made the act sexual in nature. This approach was expressly overruled by the Court of Appeal. The correct approach is to take each element in turn. The first, and only initial question that should be asked was whether the defendant’s actions may be sexual. If they could be, and only if they could be, could the second question as to the circumstances of the question be asked. It does not matter that the circumstances might make an act sexual, if the act was not sexual without the circumstances. The result of this judgment was that acts that are not sexual in nature can never become sexual simply because a defendant takes sexual gratification from them.
Sexual Assault
Section 3 of SOA provides:
- A person (A) commits an offence if –
- he intentionally touches another person (B),
- the touching is sexual,
- B does not consent to the touching, and
- A does not reasonably believe that B consents
The only element of this offence which requires consideration is touching. This is because although where touching is given its ordinary meaning in most circumstances, the nature of the offence is such that a victim does not necessarily need to be aware that they are being touched. Nor does the victim’s body need to be touched. A defendant who touches the victim’s clothes without touching the victim will satisfy the requirements of the offence.
Causing a Person to Engage in Sexual Activity Without Consent
Section 4 SOA 2003 provides:
1. A Person (A) commits and offence if –
2. he intentionally causes another person (B) to engage in an activity,
3. the activity is sexual,
4. B does not consent to engaging in the activity, and
5. A does not reasonably believe that B consents
This section addresses circumstances in which a victim is forced to engage in any kind of sexual activity that may not be addressed by the preceding offences. It also has the effect of making a defendant liable if the victim is forced by the defendant to engage in sexual activity with somebody other than the defendant. In such a circumstance, the person committing the sexual act may be liable in addition to the person who causes the victim to engage in it. A husband who forces his wife to have sexual intercourse with another man may be liable under this section. The other man may be liable for rape.
Sexual Offences Against Children
Sections 5 to 15 contain a number of offences related to children. It is not possible to address these individually here. Two important points are relevant however. These offences fall into two categories. The first of these relates to sexual activity of the type set out in the adult offence with a child under the age of 13. Each of these offences removes any notion of consent from the offence. Therefore, where a defendant penetrates a child with his penis and the child is under 13, he will be liable for rape.
The second set of offences applies to children between the age of 13 and 16. In these offences, a defendant may be able to raise a defence if they are able to assert that they reasonably believed the child to be aged 16 or over at the time of the relevant act. What is reasonable is clearly a question for the jury.
About Author
Anshul Pahwa is pursuing BA.LLB from Inderprastha University.
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