Sexual Offences PDF

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Summary

Covers the following areas; Rape, Sexual assault, Under age sexual activity, Indecent photographs of children , Prostitution, Indecent exposure
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Description

Sexual Offences This is a highly specialised area. Specialist officers/units and even other agencies like the NSPCC would normally handle most sexual offences. The law in this area is largely governed by the Sexual Offences Act 2003. The changes in the law as it was under the Sexual Offences Act 1956 have made the law in some senses more strict and in some respects less so. For instance some predatory activity is now outlawed that simply was not covered before. Sexual activity with a child under 16 is however no longer a strict liability offence so that a genuine error as to a person’s age (within reason) will afford a defence. Also in (some would say) a headlong rush to outlaw some of the most unpleasant paedophile activities the net effect of some of the provisions was arguably to subject passionate ‘teenage fumbling’ to a potential 5 year sentence. This despite Crown prosecution Service assertions that they would almost never prosecute two 15 year olds and under for such activity. We have selected the following offences to deal with here:      

Rape Sexual assault Under age sexual activity Indecent photographs of children Prostitution Indecent exposure Rape

Rape is defined by reference to s1(1) Sexual offences Act 2003: ‘A person (A) commits an offence if(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents’ It is worth noting that even a woman can be an accomplice to rape. S1(2) goes on to say: ‘Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents’. As recent media campaigns have reiterated, this clearly covers a situation whereby a woman is too drunk to give adequate consent. Such circumstances could well lead to a rape charge despite them being termed by the unhelpful label ‘date-rape’. Administering a drug such as 1

GHB to attempt to ensure the woman consents would also fall within this offence as it could not be shown that the accused ‘reasonably believed that the victim consented. S74 Sexual Offences Act 2003 further illustrates the point by defining consent: ‘….a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’ Clearly a drugged or intoxicated person could not have that capacity, neither could a seriously mentally impaired person. Rape of a child (under 13) Rape of a child is separate offence and remains strict liability in part at least. No mens rea need be shown with respect to consent if the child concerned is under 13 per s5(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.’ Nor indeed will it be any defence under the statute to say that the accused thought the victim older than that age, i.e a person will always be punished for having sex with an under 13 year old. Other types of rape   

When a person continues to have sex with the person despite the other person telling them they wish to stop When the male removes the condom without the other person’s consent When the male ejaculates in the person without their consent, as illustrated in R (F) V DPP [2013] EWHC 945

The allegation was that claimant had agreed to sexual intercourse with the intervener on the basis that he would not ejaculate inside her, withdrawal being their agreed form of contraception. Following penetration the suspect had informed her that he would in fact ejaculate inside her, which he did, and he would do so because she was his wife and he could do it if he wanted. Penetration is a continuing act and so consent can be withdrawn even after penetration has begun and this will transform an act that begins as consensual intercourse into rape.

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Sexual Assault It is quite possible to penetrate a victim’s body orifices for sexual gratification with other than a penis. This is catered for by the offence of assault by penetration. S2(1) Sexual offences Act 2003: The definition of sexual assault is: ‘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, (b) the penetration is sexual, (c) B does not consent to the penetration, and (d) A does not reasonably believe that B consents.’ There is a corresponding offence in relation to a child under 13 which again deliberately leaves out any consideration of the consent of the child or reasonable belief in relation to age. S6(1) provides:

‘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.’ Sexual assault may occur without the insertion of anything of course. Many times, a victim has been left traumatised by being caressed or fondled against their will for example. S3(1) covers the basic offence of sexual assault:

‘A person (A) commits an offence if (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents.’

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As with all the offences so far reasonable belief will be judged having regard to all the circumstances. It is an objective standard which means that in effect a jury or panel of magistrates will be asked to judge whether any such belief was reasonable no matter how honest it might have been. This sweeps away, in relation to sexual offences at least, the rather unsatisfactory state of the law on honest and reasonable mistakes that came from R v Morgan 1972. As a general note the offence of incest (sex with a close family member) remains under the 2003 Act as does bestiality - sex with a living animal. Under age sex    

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The age that a young person may validly consent in law to sexual activity is 16 years. In Holland it is 12 (unless there is a big age gap between the parties) Iran it is 12, recently raised from 9. In Germany and some US states it is 14. Interestingly it is a federal offence in the USA to take a young person across a state line to take advantage of a lower age of consent in a neighbouring state. In Dubai it is unlawful at any age unless the parties are married. In the UK the relevant age was 13 until just over 100 years ago. It follows then that it may not always remain at any given level and tends to follow the traditions and social norms of the society which sets it. The law can respond to changes in attitudes. Certainly the age of consent for homosexual activity fell from 21 to 16 over a very short time after heated debate in the House of Lords in the late 1990s.

For enforcement purposes the crucial issue is the age of consent now and the law says that sexual activity with someone under 16 is unlawful, s9(1) stipulates: ‘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 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13.’ The touching can be any of a sexual nature but the following are viewed most seriously:    

penetration of B's anus or vagina with a part of A's body or anything else, penetration of B's mouth with A's penis, penetration of A's anus or vagina with a part of B's body, or penetration of A's mouth with B's penis.

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An offence is committed by an under 18 year old in the same circumstances but is charged under s13 and involves a maximum 5 year penalty as opposed to 14 years under s9. Abuse of Trust Crucially if the adult is in a position of trust such as a secondary school teacher or warden in a young offender’s institution, the relevant age for consent is raised to 18. Thus the consent of a 16 or 17 year old victim would be irrelevant as it is for under 16 year olds in all other cases. There are further offences such as causing or inciting an underage person to engage in sexual activity. There are also the offences of engaging in sexual activity in the presence of a child or causing a child to watch a sexual act in addition. Revision:  Rape – S1 Sexual Offences Act 2003 (child – s5)  Assault by penetration – S2 Sexual offences Act 2003 (child – s6)  Sexual assault – s9/13

Indecent Photographs of Children The lower age limit of the subject in relation to photographs of an indecent nature, which may be lawfully possessed or distributed, is 18. Even ‘hard core’ pornography where the subject(s) are over 18 is legal but subject to a licence, so called ‘soft’ pornography is not restricted. Extreme pornography featuring violence is however now outlawed. S1(1) Protection of Children Act 1978 prohibits a person: ‘(a) to take, or permit to be taken or to make, any indecent photograph or pseudophotograph of a child; or (b) to distribute 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 pseudophotographs, or intends to do so.’ This offence relates to those who make or publish the material. It is more likely that people who view or possess this type of material, such as on their computer hard drives will come to police notice. This offence is dealt with under s160(1) Criminal Justice Act 1988:

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‘….is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.’ There are defences in the statute however:  that he had a legitimate reason for having the material or  that he had not himself seen the material and did not know, nor had any cause to suspect, it to be indecent; or  That the material 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. Prostitution Being a prostitute or paying for sexual activity are not illegal and have not been so since the 1960s. It remains illegal to live off the earnings of a prostitute, keep a brothel, or procure a woman to be a prostitute, which is often in the news referred to as ‘trafficking’ as it tends nowadays to involve illegal immigrants being used as forced sexual labour. S71 Sexual Offences Act 2003 renders illegal sexual activity in a public lavatory. The main offences we are concerned with here are soliciting and ‘kerb crawling’. It is an offence under s1 Street Offences Act 1959 for a prostitute to solicit or loiter in a street or public place. Per Smith v Hughes 1960 this would extend to attracting the attention of clients from their own front window etc. Historically all prostitutes were potentially prosecuted for this offence. Since 2000 though there has been a general recognition that children under 16 offering themselves in these circumstances, whilst technically committing the offence, should be treated as victims of child sexual abuse. Such is the policy of criminal justice agencies nowadays. The offence of ‘kerb crawling’ is provided by s1 Sexual Offences Act 1985 which prohibits the solicitation of prostitutes from a motor vehicle in a public place. Such men are often diverted into a voluntary treatment programme on a first time offence by many police forces. The position regarding men who solicit prostitutes on foot is less clear. Indecent Exposure The stereotypical ‘dirty old man’ in a raincoat is not necessarily typical of the offenders in this category. It is just as likely to be a young man ‘mooning’ at passers-by or revealing himself generally as a result of drinking excessively. It is however only the genitalia of either sex being exposed which founds the offence per s66(1): ‘(a) he intentionally exposes his genitals, and (b) he intends that someone will see them and be caused alarm or distress.’

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Any part of the body exposed could found the offence of outraging public decency under common law or s5 Public Order Act 1986. Thus a woman flashing her breasts at passing motorists would not normally be dealt with under s66. Revision:

 Indecent photographs of children – Protection of Children Act 1978/Criminal Justice Act 1988.  Prostitution/kerbcrawling - Street Offences Act 1959/Sexual Offences Act 1985.  Indecent exposure – S66 Sexual offences Act 2003.

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