Sexual Offences

Introduction
It almost goes without saying that there are a very large number of sexual offences
that could be considered by this chapter. It is not possible, nor necessary, since some
of the less common offences are unlikely to be given a great deal of consideration in
an undergraduate course, to deal with all of these offences in detail. Furthermore,
since almost all sexual offences are now contained within the provisions of the Sexual
Offences Act 2003 (SOA 2003), many of the key terms are interchangeable between
the various offences. The result is that once certain offences have been considered, a
brief outline of others will provide sufficient understanding.

Rape
The definition of rape is set out in section 1 SOA 2003, which provides:
A person (A) commits and offence if -
1. He intentionally penetrates the vagina, anus or mouth of another person (B)
with his penis,
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents
 Whether a belief is reasonable is to be determined having regard to all
the circumstances, including the 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. Section 79(3) SOA 2003 provides that parts of the body that are surgically
constructed fall with the remit of the Act. This provision means that transsexual
women can be raped vaginally, but also means that transsexual men are able to
commit the offence. The limitation on penetration with a penis means that a woman,
even if she forces a man to have sexual intercourse with her, can never be guilty of
rape. She will be potentially liable for other offences considered below.
The offence only requires penetration of one of the prescribed orifices, it is not
necessary for full sexual intercourse to take place. Furthermore, any degree of
penetration, however slight, will be sufficient for the requirements of the offence.
The term penetration does not simply apply to the initial penetration, but constitutes a
continuing act from entry to withdrawal (SOA 2003, s 79(2)). Therefore, if consent to
the penetration ceases, the man must withdraw (Kaitamaki v The Queen [1985] AC
147). The important point in this respect is that in such a circumstance, the initial
consent to the initial penetration becomes irrelevant and a defendant is unable to
claim, if they become aware that consent has ceased, that there was continuing
consent (R v Cooper [1994] Crim LR 351).
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. Therefore, whilst the issue is ultimately one of
fact, a certainty of approach is often necessary.
Section 74 SOA 2003 provides that:
For the purposes of this Part, a person consents if he agrees by choice, and has the
freedom and capacity to make that choice.
The definition aims to focus on a complainant’s ability to make a choice. It does not
contain any need for a complainant to demonstrate their consent or lack of it. In other
words, a complainant may or may not consent without any extrinsic demonstration of
their frame of mind. The result is that a complainant who freezes and is unable to
communicate their consent, or lack thereof, may not be consenting.
The definition has two distinct considerations. The first of these requires a
complainant to be able to freely make the choice as to whether they consent to the
penetration. In order to be able to do this, the complainant cannot be subject to any
kind of undue pressure relevant to their actions. Whilst this point appears to be a
question of law, the level of undue pressure that is sufficient to vitiate consent is a
matter for the jury.
Case in focus: R v Kirk [2008] EWCA Crim 434
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.
The issue of consent is further complicated by the fact that it can cover a range of
reactions ranging from reluctant agreement to an express desire for the penetration to
occur. Clearly, the former position may require some guidance to be given to the jury.
However, in R v Watson [2015] EWCA Crim 559 it was held that where a
complainant submits because they feel that they are unable to resist, the circumstances
may be such as to lead to a conclusion that they reluctantly agreed and therefore
consented. This decision appears to go directly against the judgment in R v Olugboja
[1982] QB 320, where it was held that a distinction between submission and reluctant
acquiescence must be drawn; submission does not equate to consent.
The second element contained within the definition of consent relates to the
complainant’s capacity to give consent. Capacity is not defined by SOA 2003, but it
seems that in order to have sufficient capacity to consent a complainant must have
sufficient knowledge or understanding to be able to decide whether to agree or not (R
v Howard (1965) 50 Cr App R 56).
In R v Cooper [2009] 1 WLR 1786 it was held that the question that must be asked is
firstly, whether a complainant is able to understand the information relevant to the
decision that they must make and secondly, whether they are able to weigh that
information to be able to make a choice. The effect of this is that a mentally
disordered complainant who is able to understand the nature of the act they are being
asked to consent to, may still lack capacity if they are unable to balance whether they
ought to agree. Prior to this judgment, the position was simply one of whether the
complainant was able to understand the nature of the act. If they could, they would
have sufficient capacity to consent (X City Council v MB, NB, and MAB [2006]
EWHC 168 (Fam)).
The second situation where capacity may be a specific issue relates to where a
complainant is voluntarily intoxicated. In such circumstances, the jury should take
four things into consideration (R v Coates [2008] 1 Cr App R 52):
 Intoxication may lower a complainant’s inhibitions, and therefore may make
them do something that they would not ordinarily do when not intoxicated. The
fact that a complainant agrees to something in this state does not mean that they
have not consented. The issue is purely one of whether the intoxication was
such as to remove the complainant’s capacity to consent.
 If a complainant is so intoxicated that they cannot agree or cannot understand
the nature of the act or, if they can understand the act, are unable to weigh
whether to consent or not, cannot consent.
 A complainant may be in the state described directly above even if they remain
conscious. They may be aware that they do not want to consent, but are unable
to communicate this, or they may simply be incapable of making a decision.
 An unconscious complainant cannot consent, even if the complainant’s body
responds to the defendant’s actions.
Case in focus: R v Hysa [2007] EWCA Crim 2056
The complainant was a 16-year-old girl who got into a car with three strangers
after drinking heavily. She alleged that she was raped in the car. The
complainant gave evidence at trial that she remembered being asked by the
defendant for sex, but could not remember her reply. She also remembered her
clothes being removed and having sex with the defendant, but although she
thought that she might have told the defendant to stop or tried push him off, she
could not be sure because she was drunk. The complainant did not think that she
had sexual intercourse willingly and did not think that she would have consented
in these circumstances. When the defendant had finished, one of the other
occupants of the car asked the complainant if it was his turn now, to which she
replied ‘No’.
The trial judge initially submitted to the defences submission of no case to
answer, but the Court of Appeal remitted the matter back to the Crown Court
for the case to be continued. It was stated that it would be extremely unusual for
a situation to arise where a vulnerable drunk 16-year-old was found to consent to
sex with a stranger whom she had only met a few minutes before. It did not
matter for these purposes that the complainant may not have expressly said no,
or that she may not have put up some kind of physical resistance, the jury would
still be able to convict.
This judgment is interesting in that it covers many of the issues arising out of
consent. It addresses the fact that for the actus reus of rape, it is the
complainant’s state of mind that is relevant to consent, not necessarily their
actions. It also makes the importance of considering capacity in respect of all the
circumstances.
Until relatively recently it was considered that a woman could not refuse to have
sexual intercourse with her husband. This position was changed in R v R [1992] 1 AC
599, with a conviction secured in 2004 for a rape that occurred 20 years prior to the
removal of the exemption (R v Barry C [2004] EWCA Crim 292).

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 (R v Heard
[2008] QB 43). It would clearly be difficult for a defendant to suggest that penetration
was accidental. Indeed, in R v F [2014] EWCA Crim 878, it was held that a trial
judge was not at fault when stating in summing up the view that it was unlikely that a
man might be able to penetrate (in this instance a child) whilst unconscious, retain an
erection and ejaculate without waking up. It also seems that it is not a defence to state
that the intention was to penetrate one orifice and another was penetrated accidentally.
In R v K [2009] 1 Cr App R 331, in respect of the actus reus, it was held that
penetration of any orifice will suffice to satisfy the offence, it does not matter which.
It is submitted that there appears no good reason why a similar approach would not be
applicable to an intention to penetrate.
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. This is not an entirely
objective test, in that section 1(2) SOA 2003 provides that regard should be had to
all of the circumstances including those that the defendant has taken to ascertain
whether the complainant has consented. In this respect, certain characteristics of
the defendant may be relevant to the consideration that the jury makes.
Although particular personality traits or a particular mental disorder might be relevant
to whether a defendant can be considered to have a reasonable belief in consent. This
is only to the extent that the trait or disorder has an impact on the defendant’s ability
to recognise subtle social signals, and therefore the to fully recognise a lack of consent
(R v Braham [2013] EWCA Crim 3). These particular characteristics are however
limited, and delusional thinking or any form of psychosis, although this might
subjectively make a defendant’s belief reasonable cannot be considered objectively
reasonable. The reasoning behind this approach seems to be based on the fact that
prior to the coming into force of SOA 2003, belief in consent was purely subjective
(DPP v Morgan [1976] AC 182). In expressly reversing the decision in Morgan
Parliament clearly intended to remove the subjective element of the offence and
therefore to return to it, and go against Parliament’s apparent express intention, would
be fundamentally wrong.
Self-induced intoxication cannot give rise to a reasonable belief in consent.
Therefore, whilst subjectively, it is recognised that a drunk person may make a
reasonable mistake as to the existence of consent, the belief that consent exists
can never be reasonable (R v Grewal [2010] EWCA Crim 2448).
Section 1(2) SOA 2003 does not require a defendant to take positive steps in an
attempt to ascertain whether a complainant is, in fact, consenting. However, it seems
reasonable to suggest that a jury would undoubtedly take into account any steps that
were taken by the defendant in a particular set of circumstances. Where there is no
pre-existing relationship between the complainant and defendant, it is likely that
greater steps will be needed in order to make a belief in consent reasonable than
would be the case in a long standing relationship.
Presumptions as to Consent
SOA 2003 creates two distinct types of presumptions as to whether the complainant
consented to the penetration. These presumptions are relevant to both the actus reus
and mens rea consent elements. The first types of presumption, set out in section 75
SOA 2003, are evidential presumptions, which relate to situations where the
complainant is not considered to have consented unless there is evidence that
demonstrates that they have consented. The second type of presumption, contained
within section 76 SOA 2003 are conclusive. If one of the circumstances set out within
this section exists, the defendant will not be able to adduce evidence that shows that
the complainant consented.
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 (SOA
2003, s 75(1)). However, it is not necessarily sufficient for a defendant to assert that
they believed that, despite the section 75 presumption, the complainant consented ( R v
Ciccarelli [2012] 1 CR App R 190). In other words, the defendant’s belief in the
existence of the facts that rebut the presumption must itself be reasonable. The result
is that a jury must consider whether the belief in the specific facts is reasonable in
addition to or perhaps instead of whether the belief in consent is itself reasonable. In
other words, a reasonable belief in consent will necessarily take into account the facts
set out in the presumptions without the need for the presumption to be directly
considered. Furthermore, the fact that a presumption can be rebutted, does not
automatically demonstrate that consent was present or that a defendant reasonably
believed that it existed. The ordinary reasonable belief element must be considered in
such circumstance.
The application of the section is fourfold:
 If a section 75 SOA 2003 presumption arises and the defendant cannot adduce
evidence to rebut it, consent will not occur or they will not have a reasonable
belief in consent.
 If they are able to adduce evidence, the question as to whether the evidence is
sufficient to rebut is one for the jury.
 If the jury consider the evidence sufficient to rebut, the prosecution must
produce evidence that demonstrates that the complainant did not consent.
  In this circumstance, the ordinary approach as to the defendant’s
reasonable belief applies.
There are six evidential presumptions.
4. Any person was, at the time of the relevant act or immediately before it began,
using violence against the complainant or causing the complainant to fear that
immediate violence would be used against him. It is important to note that the
use or threat of violence need not come from the defendant. It is violence
directed at the complainant, whatever its origin that is relevant.
5. Any person was, at the time of the relevant act or immediately before it began,
causing the complainant to fear that violence was being used, or that
immediate violence would be used, against another person.
6. The complainant was, and the defendant was not, unlawfully detained at the
time of the relevant act.
7. The complainant was asleep or otherwise unconscious at the time of the
relevant act. This section reflects that view set out above that an unconscious
person cannot consent.
8. Because of the complainant’s physical disability, the complainant would not
have been able at the time of the relevant act to communicate to the defendant
whether the complainant consented.
9. Any person administered to or caused to be taken by the complainant, without
the complainant’s consent, a substance which, having regard to when it was
administered or taken, was capable of causing or enabling the complainant to
be stupefied or overpowered at the time of the relevant act. The important point
in the context of this presumption is that the complainant’s condition at the
time that the relevant act occurred is irrelevant to the operation of the
presumption. All that is required is that the overpowering drug is administered,
it does not matter whether the complainant was actually overpowered.
These presumptions are largely self-explanatory and it can be seen that the ability for
them to be rebutted is limited. However, it may be possible for a defendant to
demonstrate that either the complainant expressly desired one of the circumstances
contained within the presumptions to exist (as some kind of fantasy, for example) and
thereby rebut the presumption.
Conclusive Presumptions
There are two conclusive presumptions set out within section 76(2) SOA 2003. The
first of these provides that a complainant will not be considered to have consented if
the defendant intentionally deceived the complainant as to the nature or purpose of
the relevant act (s 76(2)(a)).
This presumption will arise where a defendant has, for example, informed a
complainant that they are going to perform a medical procedure on them where in
reality the defendant simply intends to have sexual intercourse, with the result that the
complainant consents to the penetration (R v Flattery (1877) 2 QB 410).
Case in focus: R v Jheeta [2007] 2 Cr App R 477
The defendant misled the complainant over a number of years by sending her
threatening text messages which he pretended were from a third party and then by
informing the complainant that he had informed the police and that the police were
addressing the issue. During this period, because the complainant felt threatened, the
defendant comforted her with the result that the complainant asserted that she had
sexual intercourse with the defendant where otherwise she would not.
It was held that the defendant’s behaviour did not mislead the complainant as to the
nature or purpose of the sexual act, and therefore section 76(2)(a) did not apply.
Case in focus: R v Devonald [2008] EWCA Crim 527
This judgment contrasts with Jheeta. In this instance the complainant was deceived
into believing that he was masturbating for the gratification of a 20-year-old girl via
a webcam. In fact, he was doing it for the father of a former girlfriend who wished to
teach the complainant a lesson. It was held that the complainant had been deceived as
to the purpose of his act and section 76(2)(a) applied. (Note that this is clearly not a
rape case, but, as will be considered below, section 76 applies to other offences under
SOA 2003).
The second conclusive presumption arises where the defendant induces the
complainant to consent to the relevant act by impersonating a person known
personally to the complainant (s 76(2)(b). The limitation in this section is that the
person who is being impersonated must be personally known to the complainant. The
section would be triggered by somebody impersonating the complainant’s husband
(see R v Elbekkay [1995] Crim LR 163), for example, but would not be if the
defendant impersonated a film star whom the complainant admired, but did not know
personally.
Non-disclosure of sexually transmitted diseases
In R v B [2007] 1 WLR 1567, it was made clear that non-disclosure of a sexually
transmitted disease did not activate section 76(2)(a) SOA 2003. It was also held in R v
Dica [2004] QB 1257 that non-disclosure would not vitiate consent under section 74
SOA 2003.
Complainant’s Mistake
The position in respect of whether a complainant consents with a mistaken belief as to
the nature or quality of the act is linked closely to both section 76 and the general
ability to make an informed choice. In R v Tabussum [2000] 2 Cr App R 328, for
example, the complainants were found not to have consented when a defendant
examined their breasts after telling them that he was medically qualified when he was
not. Whilst the complainants had consented to the nature of the sexual assault (it was
held that the same position applies for this offence and rape - it should also be noted
that because this was a pre SOA 2003 judgment, the offence was indecent assault),
they had not consented to the quality, and therefore the defendant was liable. It
appears that this approach reflects the position in Devonald. Therefore, it is important
to look at all aspects of the defendant’s actions and the complainant’s understanding
of those actions in order to consider whether consent exists.

Assault by Penetration
Section 2 of SOA 2003 provides:
A person(A) commits an offence if -
1) he intentionally penetrates the vagina or anus of another person (B) with a part
of his body or anything else,
2) the penetration is sexual,
3) B does not consent to the penetration, and
4) 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 not 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.
Section 78 SOA 2003 provides:
For the purpose of this Part (except section 71) penetration, touching or any other
activity is sexual if a reasonable person would consider that -
(1) whatever its circumstances or any person’s purpose in relation to it, it is
because of its nature sexual, or
(2) because of its nature it may be sexual and because of its circumstances of the
purpose of any person in relation to it (or both) it is sexual.
The requirements of section 78(a) are reasonably clear, in that where an act is clearly
sexual in nature, it does not matter whether the defendant gained any sexual
gratification from it. Indeed, even if the defendant’s intentions are entirely non-sexual,
if the act itself is clearly sexual, the act will satisfy section 78(a).
The application of section 78(b) is slightly more complex. Where the question as to
whether the act is sexual is ambiguous, the jury must consider firstly whether, in its
view, the nature of the act may make it sexual and, if it does, whether in the particular
circumstances of it, it was in fact sexual (R v H [2005] 1 WLR 2005). It is only if
both questions are answered in the affirmative, that section 78(b) will be satisfied.
Case in focus: R v H [2005] 1 WLR 2005
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. In R
v George [1956] Crim LR it was held that the removal of a shoe by a foot fetishist
could not be considered sexual because it was not sexual in nature. Interestingly in H
it was held that George was wrongly decided because the definition of what may be
sexual was too narrow. The fact that an act was not ordinarily sexual did not mean
that it could not be.
In this respect, it seems that H both narrows and widens the scope of a sexual act at
the same time. Whilst an act will not be sexual by circumstance if it is not sexual
alone, the scope of what can be considered sexual alone is a broad one.

Sexual Assault
Section 3 of SOA provides:
A person (A) commits an offence if -
10.he intentionally touches another person (B),
11.the touching is sexual,
 12.B does not consent to the touching, and
13.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 (R v Bounekhla [2006] EWCA Crim 1217). 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 (R v H [2005]
1 WLR 2005).

Causing a Person to Engage in Sexual Activity Without Consent

Section 4 SOA 2003 provides:
A Person (A) commits and offence if -
1) he intentionally causes another person (B) to engage in an activity,
2) the activity is sexual,
3) B does not consent to engaging in the activity, and
4) 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 (ss 5 - 8). 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 (ss 9 -15).
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.