Sexual Offences I

What is the harm of sexual offences?

 

  •     There is no requirement of physical or psychiatric injury.

 

  •     The harm is against a person’s ‘sexual autonomy’.

 

S.1 of the Sexual Offences Act 2003 – Rape

 

(1) 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

 

Actus Reus

 

The conduct element:

 

  •     Penetration of the vagina, anus or mouth of another person with his penis

 

  •     There must be a continuing act.

 

The circumstance element:

 

  •     B does not consent (question of B’s subjective state of mind)

 

Mens Rea

 

  • Intentional penetration
  • A does not reasonably believe in B’s consent (Objective test) – having regard to the circumstances and any steps D has taken to ascertain whether V consents.
  • The jury may take into account D’s age, sexual experience, learning difficulties etc.

 

The following provisions are relevant to the mens rea and actus reus:

 

  •      75 and 76: Evidentiary presumptions of non-consent.
  •      74: Definition of consent: According to s.74 of the Sexual Offences Act 2003, ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.

 

s.75 Sexual Offences Act 2003: Rebuttable presumptions about consent (relevant to Actus Reus and Mens Rea)

 

  •      Where any of the six presumptions exist, and the defendant (D) knew they existed, the victim (V) is taken not to have consented unless sufficient evidence is presented to raise an issue as to whether or not V consented.

 

 

s.74 Sexual Offences Act 2003

 

  •      An individual consent if they agree by choice and has the freedom and capacity to make that choice.

 

“By choice” = a clear indication that consent should be seen as a positive sign of willingness.

 

Relevant case law:

 

R (F) v DPP [2013] EWHC 945

 

R v McFall (1994) Crim LR 226

 

R v Linekar [1995] Cr App R 49

 

R v Elbekkay [1995] Crim LR 163

 

R v McNally [2013] EWCA Crim 1051

 

R v Jheeta [2007]

 

R v C [2009] UKHL 42