Sexual Offences
- Elliot Tierney
- Aug 17, 2022
- 9 min read
The Place of Sexual Offences in the Criminal Law:
Background History:
Historically, rape was seen as a crime against the honour of a women and/or her husband / father, not against the woman's person itself. It was therefore considered a property crime since women were in the ownership of their husband or father. As such, the law's primary focus was not on how the rape had personally affected the victim, but rather their social standing.
Over the course of the 20th century, the concept of rape was redefined as a specialist offence against the person.
Social Values:
Sexual acts and consent are such an intimate and personal aspect of everyones lives. State intervention must be well justified to enforce strict punishment against offenders. The role of the criminal law here is to strike a balance between protecting sexual freedom and enforcing some kind of sexual discipline.
Difficulties of Enforcement:
Victims of rape are labelled as the 'complainant'. This obviously has negative connotations and may make some survivors feel as if they are merely a burden on the legal system.
Research shows that there is variation between police forces as to how many sexual offence cases are presented to the CPS to go to court, but overall 25% of cases are dismissed. [1] The overall conviction rate has been described as ‘unacceptably low’. [2]
Conviction is more likely where the assault has been linked to another assault on a different victim, where the complainant's medical history has been obtained, where the complainant has been threatened or where there is forensic / witness evidence. [3]
Explaining the Patterns:
It is argued that the adversarial system makes prosecution of offenders extremely difficult in cases of sexual assaults. Juries are skeptical of returning a guilty verdict on cases that are primarily based on personal accounts which can easily be undermined by the opposition.
Giving witness evidence of the assault can be extremely distressing for the victim. For this reason, many complainants - up to 39% - withdraw their evidence. [4]
33% say that women who flirt and 25% of women who wear revealing clothing are partially responsible for being raped. [5]
33% of women do not report rape and it is estimated that only 1 in 7 receive justice. [6]
Changes Prior to 2003:
Common Law Changes:
The longstanding common law exception of marital rape was abolished in 1991 by the House of Lords. [7]
Since 2008, evidence of the defendant's character is allowed. [8]
Statutory Changes:
The actus reus of rape was expended in 1994 to include the rape of a man. [9] Prior to this, only women could be victims of a rape.
Since 1999, sexual history evidence has not been permitted as evidence, unless there is exceptional reason to present it to the jury. [10]
Sexual Offences Act 1956:
The old law was that the defendant must know or be reckless as the the non-consent of the victim and have intentionally penetrated them.
In Morgan, the defendant was not convicted or rape since he had subjectively believed that the complainant was consenting, even though this belief was considered unreasonable.
The Morgan decision was heavily criticised. Ashworth argued that while it would be quite easy to take positive steps to establish consent by asking, the harm caused by not doing so or simply assuming is immense and damaging. [11]
Sexual Offences Act 2003:
The Act sought to improve definitions of sexual offences to modernise, clarify and define them in gender neutral terms as a result of backlash about enforcement problems and feminist critique of the law.
The Act also aimed to address wider social issues relating to sexual conduct outside of 'stranger' rape, such as emotional manipulation / coercion, abuse of trust and inequality of power.
The severity of sentencing was increased to reflect the seriousness of these types of offences.
Offences:
s1 Rape:
s(1)(1)(a) - A ‘intentionally penetrates the vagina, anus or mouth of another person (B) with his penis’
s(1)(1)(b) - ‘B does not consent to the penetration’
s(1)(1)(c) - ‘A does not reasonably believe that B consented’
Maximum Sentence: Life
Reform Proposals:
Tadros proposed that rape should be a differential offence (an offence that can be committed a number of different ways - EG: Burglary) to separate violent and non-violent rape. [12]
s2 Assault by Penetration:
A new, gender neutral offence.
s(2)(1)(a) - A ‘intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else’.
s(2)(1)(b) - ‘penetration is sexual’
s(2)(1)(c) - ‘B does not consent to the penetration’
s(2)(1)(d) - ‘A does not reasonably believe that B consents’
Maximum Sentence: Life
s3 Sexual Assault:
s(3)(1)(a) - A ‘intentionally touches another person (B)’
s(3)(1)(b) - ‘touching is sexual’ (not merely indecent)
s(3)(1)(c) - ‘B does not consent to the touching’
s(3)(1)(d) - ‘A does not reasonably believe that B consents’
Maximum Sentence: 10 years
In R v H, it was decided that ‘touching’ may be through clothing.
s4 Causing a Person to Engage in Sexual Activity without Consent:
s(4)(1)(a) - A ‘intentionally causes another person (B) to engage in an activity’
s(4)(1)(b) - ‘activity is sexual’
s(4)(1)(c) - ‘B does not consent to engaging in the activity’
s(4)(1)(d) - ‘A does not reasonably believe that B consents’
Maximum Sentence (Involving Penetration): Life
Maximum Sentence (Otherwise): 10 years
Offences Against the Vulnerable:
s5-8 – Parallel offences of 1-4 but against child under 13. No consent requirement.
In R v G, G was a 15-year-old who had sex with a 12-year-old girl believing she was also 15. G charged with s5 (rape of a child under 13). The House of Lords substituted a detention sentence for conditional discharge, but the conviction was upheld.
s9-15 – Offences against children under 16.
s16-19 – Abuse of trust against persons under 18.
s25-29 – Familial sexual offences.
s30-44 – Offences against persons with mental disorders that impede their choice.
s78 Defining 'Sexual':
s(78)(1) – ‘penetration, touching or any other activity is sexual if a reasonable person would consider that –‘
s(78)(1)(a) – ‘whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual’. Covers intrinsically sexual acts.
OR
s(78)(1)(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’. Covers ambiguously / vaguely sexual acts.
In R v H, it was held that the jury should not consider the defendant's purpose when considering whether their act may be sexual, though it may be in relation to whether it is sexual. Arguably, this creates more legal uncertainty.
Reforming the Concept of Consent:
s1(2) - A reasonable belief in whether there was consent is based on all the circumstances, such as whether A took steps to establish whether B consents.
Reasonable Belief:
This marks a shift to an objective test – a significant departure from the prior law to ensure that D is held to a higher standard of accountability. [13] Others argue this is insufficient for cases where D has mistaken belief in consent. [14]
If the defendant suffers from a delusional psychotic illness or personality disorder, a delusional belief that the victim consented is not a reasonable one. [15] The defence of insanity still available, if relevant.
s74 Defining Consent:
s(74) – ‘A person consents if he agrees by choice, and has freedom and capacity to make that choice’.
It is, therefore, insufficient to merely ask whether the victim said 'yes' to the sexual activity. This broadens the scope of consent to ensure that consent obtained through distress or other illegitimate means is not classed as true, legitimate consent.
Freedom, capacity and reasonableness are left undefined within the Act. Some argue that the Sexual Offences Act merely created a new set of malleable and unpredictable tests. [16]
Limits to Consent:
A victim cannot consent to bodily harm. [17] Current debate as to whether rough sex should be a valid defence against harms caused during sex is heated, particularly because there is skepticism that the defence would be open to abuse. [18]
In R v B, C consented to sex, but did not consent to having contracting HIV. The court held that B’s HIV status was not relevant to whether C had the freedom and capacity to consent to the sexual act (not the sexual act with a HIV positive person. It was ruled that B may be liable under OAPA, but not SOA.
In Lawrence, D deceived C as to having a vasectomy. C became pregnant. The Court of Appeal decided that since there would still be a risk of pregnancy by having sex with someone who had a vasectomy, C did consent.
s75 Evidential Presumptions:
Evidential presumptions are situations where consent is always considered to be lacking, unless it can be rebutted by further evidence.
s75(2)(a) – any person threatening violence against C.
s75(2)(b) – any person causing C to fear violence from another person.
s75(2)(c) – C was, and D was not, unlawfully detained.
s75(2)(d) – C was asleep or unconscious.
s75(2)(e) – C’s physical disabilities means they could not communicate consent.
s75(2)(f) – any person administered to C a stupefying substance without C’s consent.
In Ciccarelli, C was asleep when D had sex with her. D claimed that she had consented earlier. The court held that that was not enough to rebut the fact that she had not consented while D was having sex.
In White, the court held that explicit prior permission before falling asleep would be able to raise the issue of whether D reasonably believed in C’s consent.
A person cannot consent while they are intoxicated, voluntarily or otherwise, and have lost capacity. [19] If the other party still has capacity, they may still consent.
‘We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious.’ [20]
s76 Conclusive Presumptions:
Conclusive presumptions cannot be rebutted by evidence.
Consent and reasonable belief in consent is lacking if either:
s76(2)(a) – ‘D intentionally deceived the C’
s76(2)(b) – ‘D intentionally induced the C to consent to the relevant act by impersonating a person known personally to the C.’
In Jheeta, D and C were in a consensual relationship. D sent anonymous threatening messages to C. D convinced C that if they have intercourse more frequently, he will protect her. Later, when she tried to end the relationship, he tried to impersonate a police officer to convince her to have sex. Held that she was not consenting.
In Linekar(pre-SOA), L promised to pay a prostitute for intercourse then went back on his word. Court held that L did not deceive P as to the nature or purpose of the act (the intercourse itself), so L was not liable.
In Devonald, D coerced C to masturbate online by impersonating C’s girlfriend (D’s daughter). D was attempting to humiliate V, so D did not consent.
In Piper, V agreed to be measured for a bikini by P on the basis that it would determine her modelling potential. Instead, it was for P’s sexual pleasure. Sexual assault conviction upheld.
In Bingham, D used 2 false identities to coerce C to perform sexual acts online. Charged with 7 offences of causing a person to engage in sexual activity without consent. Court ruled that C was fully aware and would have acted irrespective of who was watching, D did not deceive her. This distinguished it from Devonald.
In R (F) v DPP, D made an agreement to withdraw before ejaculating. When D did not, it was held to be rape as C did not consent.
In Assange, A had sex with multiple women without a condom. They had consented to sex providing he wore a condom. It was left up to the jury to find whether D deceiving C as to whether he was wearing a condom made him liable.
In Green (pre-SOA 2003), D conducted an ‘experiment for sexual gratification. It was held that D's experiment was related to the nature and purpose of the act.
In McNally, a teenage woman impersonated a teenage man and secured the consent of another woman to engage in digital penetrative sex. Court held that V’s consent to the penetration might be destroyed by M’s deception as to gender.
In Monica, an undercover police officer (P) entered into a sexual relationship with protestor (M). M believed P was a legitimate member of their protest group. M alleged that she would not have consented to sex with P if she had known he was a police officer. DPP did not prosecute P for rape and M seeking judicial review of this decision. Court denied review, leaving any possible amendment to Parliament.
Resources:
References:
[1] Andy Feist, Jane Ashe and Jane Lawrence, Investigating and Detecting Recorded Offences of Rape (Home Office Online Report 18/07)
[2] Office for Criminal Justice Reform, Convicting Rapists, Protecting Victims: Justice for Victims of Rape (2006)
[3] Andy Feist, Jane Ashe and Jane Lawrence, Investigating and Detecting Recorded Offences of Rape (Home Office Online Report 18/07)
[4] Andy Feist, Jane Ashe and Jane Lawrence, Investigating and Detecting Recorded Offences of Rape (Home Office Online Report 18/07)
[5] Amnesty International UK, ‘New poll finds a third of people believe women who flirt partially responsible for being raped’ (21 November 2005) < https://www.amnesty.org.uk/press-releases/uk-new-poll-finds-third-people-believe-women-who-flirt-partially-responsible-being> accessed 4 December 2021
[6] Dame Vera Baird QC, 2019/20 Annual Report of the Victims Commissioner (2020)
[7] R v R [1991] UKHL 12
[8] R v Kirk [2008] EWCA Crim 434
[9] Criminal Justice and Public Order Act 1994
[10] Youth Justice and Criminal Evidence Act 1999; R v A [2001] 3 All ER 1
[11] Jennifer Temkin and Andrew Ashworth, The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent [2004] Criminal Law Review 328-346
[12] Tadros, ‘Rape without Consent’ (2006) 26 OJLS 559
[13] Finch and Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26 Legal Studies 303 [14] Williams, ‘Deception, Mistake and Vitiation of the Victim’s Consent’ (2008) LQR 132
[15] R v B [2013] EWCA Crim 3
[16] Finch and Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26 Legal Studies 303
[17] R v Brown [1993] UKHL 19, [1994] 1 AC 212
[18] See https://www.theguardian.com/law/2019/nov/22/concern-over-use-rough-sex-gone-wrong-defence-uk-courts?CMP=Share_iOSApp_Other; https://www.theguardian.com/society/2019/nov/27/rough-sex-defence-grace-millane-women-murder?CMP=Share_iOSApp_Other; https://www.theguardian.com/uk-news/2020/nov/10/rough-sex-excuse-in-womens-deaths-is-variation-of-of-passion-study?CMP=Share_iOSApp_Other
[19] R v Bree [2007] EWCA Crim 256
[20] R v Bree [2007] EWCA Crim 256
Cases Mentioned:
DPP v Morgan [1975] UKHL 3, [1976] AC 182
R v H [2005] 1 WLR 2005
R v G [2008] UKHL 37
R v H [2005] 1 WLR 2005
R v B [2007] EWCA Crim 2945
R v Lawrence [2020] EWCA Crim 971
R v Ciccarelli [2011] EWCA Crim 2665
R v White [2010] EWCA Crim 1929
R v Jheeta [2007] 2 Cr App R 477
R v Linekar (1995) Crim LR 320
R v Devonald [2008] EWCA Crim 527
R v Piper [2007] EWCA Crim 2151
R v Bingham [2013] EWCA Crim 823
R (on the application of F) v Director of Public Prosecutions [2013] 2 CR App R 21
R v Assange [2011] EWHC 2849 (Admin)
R v Green [2002] EWCA Crim 1501
R v McNally [2013] EWCA Crim1051
R (on the application of Monica) v Director of Prosecutions (2019) QB 1019 (2018) EWHC 3508 (Admin)
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