Non-Consensual Sexual Offences
Sexual Offences Act 2003
1. Rape S1
A. Definition: A person commits rape if they intentionally penetrate, without consent and they don’t reasonably believe that the victim consented
1. Penetration is a continuing act as given by Kaitamaki and s79(2)
2. Sexual Assault s3
- Definition: Intentionally touching another person, touching is sexual, the victim doesn’t consent and the D doesn’t reasonably believe that the V consents
- s78 provides what is sexual but the provisions are convoluted, and doesn’t give a clear definition. All we have is case law.
- This offence can be perpetrated by women as well as by men.
How do you know when touching is sexual?
Knowing whether a touching is “sexual” can be difficult. Section 78 SOA provides that:
- For the purposes of this Part (except section 71), 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, 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 (or both) it is sexual.
- R v H
- Facts: The appellant (H) appealed against his conviction of sexual assault contrary to the Sexual Offences Act 2003 s.3. The victim had been approached by H, who made a sexual proposition towards her. The victim walked away, but he approached her again and asked if she was shy. H then attempted to pull her towards him by grabbing at a pocket that was located along the side seam of her tracksuit bottoms. H had attempted to place a hand over the victim’s mouth, but had failed and the victim escaped. At trial, H had submitted that there was no case to answer as (1) touching the victim’s clothing did not amount to touching within the meaning of s.79(8) of the Act; (2) the touching had not been what a reasonable person would consider “sexual” for the purposes of s.78 of the Act. The judge rejected H’s submissions and held that the circumstances of the case were such that the touching could be regarded as sexual.
It only counts to intentional touching.
- Faulkner v Talbot
- Facts: Babysitter argued she didn’t have sex with a 14 year old as she just lay there and didn’t do anything. The sexual touching by a woman of a boy under 16, even as part of sexual intercourse and with his consent is an offence. A 14 year-old boy was staying at the appellants’ home, and was invited by the appellant to join her in bed. The appellant tried to hold the boy’s penis but he would not let her. She then pulled the boy onto her, took hold of his penis and put it into her vagina; she was charged with indecent assault.Held, that where a woman touches the penis of a boy under 16, even though as a preliminary to or during intercourse, she commits an offence notwithstanding the boy’s consent.
- Lord Chief Justice, Lord Lane, said at p.7: “An assault is any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate.” There could be no dispute that if you touch a person’s clothes whilst he is wearing them that is equivalent to touching him.
- s.3- you can touch through clothes it doesn’t have to be skin to skin as given in R v H
3. Causing sexual activity without consent
s. 4(1) SOA provides that
(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.
- sexual activity with a child (s.9 SOA) rape of a child (s.5 SOA)
- sexual activity with a person with a mental disorder impeding choice (s.30 SOA)