Seminar 7 – sexual offences

Dr Cassandra Wiener
 No requirement of physical or psychiatric injury

What makes sex Objective MR unusual for serious offences

offences Some of the offences are strict liability

different? Are sexual offences different? What is sexual

autonomy? Is it different to more general bodily
autonomy that is non sexual?
The Structure of Ss. 1 – 4 follow the same structure

the Sexual AR: conduct (the sexual act)

AR: circumstance (V’s lack of consent)
Offences Act MR: intention as to conduct
2003 MR: D’s lack of a reasonable belief in consent
 Actus reus – the fact that the V does not consent is the
The role of circumstance element of the actus reus – this is a
question of fact for the jury, based on an assessment of
consent…part V’s subjective state of mind

of both AR Mens rea – D does not reasonably believe that V

consents – this is an objective test having regard to the
AND MR circumstances and the steps D has undertaken to
ascertain whether V consents
 Evidentiary presumptions of non consent (which come
mostly from old case law) are contained in s 75 and s
76, then

How does the S 74 contains the SOA definition of consent itself

SOA 2003 These sections – 74, 75 and 76 – are relevant to the

actus reus and the mens rea
codify consent? In a problem question, start with s76, (conclusive
presumptions) then s 75 (rebuttable presumptions) then
use the s 74 general presumption only if the
circumstances in s 76 and s75 are NOT present.
Start with s. 76 conclusive presumptions
(nature and purpose/impersonation)

Then consider s. 75 rebuttable presumptions

(six potential circumstances) Structure for
consent (for both
AR and MR)
Finally s 74 (if relevant) general definition of
consent (a person consents if he agrees by
choice and has the freedom and capacity to
make that choice)
AR: D touches V MR: intention

AR: V does not consent

S 3 SOA:
AR: touching is sexual Sexual assault

MR: D does not have a reasonable

belief in V’s consent
 Did Freddie touch Gerald? Yes – wrestled him to the
ground, took off his shoes and strokes his feet

S 3 2003 AR AR – did Gerald consent? – had to wrestle him to the

ground etc, probably no?
AR was the touching sexual?
 S 78 gives the definition of ‘sexual’

New s 78 Two options:

(a) Where the circumstances of the act or any person’s
definition of purpose in relation to the act make it ‘because of its
nature’ sexual, (Hill 2006) OR
sexual (b) Because of its nature it might be sexual and then the
circumstances or the purpose of the D (or both) make it
sexual (George 1956, Court 1989)
 Two part test: (i) because of its nature it might be sexual and
then (ii) the circumstances or the purpose of the D (or both)

S78 (b) make it sexual

Might the wrestling, shoe removal and foot stroking have been
sexual?
If yes, did the circumstances or the purpose of Freddie (or
both) make it sexual?
 D had a foot fetish
Attempted to remove a girl’s shoe for reasons of sexual

George (1956) gratification

Held: not to be ’indecent assault’ (the 1956 equivalent
of s 3 sexual touching offence)
No ‘circumstances of indecency’
 D pulled a 12 year old girl across his knee and spanked
her clothed bottom
Court (1989) D had a ‘buttock fetish’
HL: upheld conviction for indecent assault
 Whether a belief is reasonable is to be determined
having regard to all the circumstances, including any
steps D has taken to ascertain whether V consents
(section 2(2))
MR section 3 The conclusive and rebuttable presumptions on
consent apply (sections 75 and 76)
Section 74 general definition of consent applies
 Did Freddie have a reasonable belief in Gerald’s
consent?

MR Did Freddie take any steps to ascertain whether Gerald

consents?
Unlikely – had to wrestle him to the ground…
Rape s 1 SOA penetration of the vagina, anus or mouth of another
person with his penis
2003 Actus V does not consent (question of V’s subjective state of

Reus mind) NB this is a circumstance element of the AR, as

well as being part of the MR as we shall see…
 Penetration of the vagina, anus or mouth of another

Rape s 1 SOA person with his penis

2003 Actus V does not consent (question of V’s subjective state of

mind)

Reus Here – Freddie does penetrate I’s vagina with his penis
Does I consent?
 Start with s. 76 conclusive presumptions
(nature and purpose/impersonation)

Then consider s. 75 rebuttable presumptions

Structure for (six potential circumstances)
consent (for both
AR and MR)
Finally s 74 (if relevant) general definition of
consent (a person consents if he agrees by
choice and has the freedom and capacity to
make that choice)
 (a) Where there is (b) Where there is
violence, or the threat of violence, or the threat of
violence, at the time of violence, at the time of
the act or immediately the act or immediately
before it against V before it against another
(eg V’s child)

Section 75 (c) Where V is detained

(ie kept hostage)
(d) Where V is asleep or
unconscious
introduces six
potential
circumstances (e) Where V is disabled (f) Where V has taken
and unable to (without consent) a
communicate substance such as a date
rape drug
 75 (a) Where there is violence, or the threat of
violence, at the time of the act or immediately before it
against V
S 75 (a) Freddie wrestled Immaculata to the floor
How will Freddie rebut the presumption?
 Mens rea
D does not reasonably believe that V
consents

This is an objective test, having regard to the

circumstances D has undertaken to ascertain
whether V consents
Application to What steps has Freddie undertaken to ascertain
whether or not Immaculata is consenting? Seems like
our facts: MR none
 D falsely and knowingly told V he had had a
vasectomy
On this basis, and after further reassurance from D, V
consented to sex
Lawrence CA: consent valid – distinguishes between deception
as to the physical sexual activity (whether to wear a
condom) which WILL undermine consent, and the
‘broader circumstances’ (whether or not D has a
vasectomy) will NOT undermine consent
Dica (2004) - Non Linekar (1995)
disclosure of HIV Promised to pay sex
(yes consent) worker for sex but
in fact never
intended to pay (yes
consent)

Monica (2018) Lawrence (2020)

Deception by an deception as to

The
undercover vasectomy (yes
policeman (yes consent)
consent)
inconsistent
Assange (2013)
Deception as to the
use of a condom
F v DPP (2013)
Deception as to
internal ejaculation
deception
(no consent) (no consent)
cases…
McNally (2013) Jheeta (2007)
Deception as to deception as to
gender (no consent) circumstances (no
consent)
 Penetration of the vagina, anus or mouth of another
person with his penis
Rape s 1 SOA V does not consent (question of V’s subjective state of
2003 Actus mind)

Reus Here – John does penetrate Jemma’s vagina with his

penis
Does Jemma consent?
 Start with s. 76 conclusive presumptions (nature and
purpose/impersonation) not relevant here

Structure for Then consider s. 75 rebuttable presumptions (six

potential circumstances) – here 75(a) violence or threat
consent (for both of violence – Jemma tries to fight John off?

AR and MR) Finally s 74 (if relevant) general definition of consent

(a person consents if he agrees by choice and has the
freedom and capacity to make that choice) clearly
Jemma is not consenting
 Does John reasonably believe that Jemma
consents?
S 75(a) rebuttable presumption will apply…

Mens rea This is an objective test, having regard to the

circumstances John has undertaken to
ascertain whether Jemma consents
BUT the test is what a reasonable person with
John’s characteristics would have believed...
Up to a point
 S1 SOA 2003 rape

John penetrates Rosie’s vagina with his

penis

John and Rosie Did she consent? (AR)

Did he reasonably believe she consented?

(MR) – NB s75(a) does not apply to non
physical threats