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Criminal Law - Sexual Offences
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Comprehensive notes on Criminal Law in the UK, on sexual offences.
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CRIMINAL LAW REVISION NOTES1. INTRODUCTION:
WHAT ARE SEXUAL OFFENCES?
• There are a range of crimes that can be considered to be sexual offences:
NON-CONSENSUAL CRIMES:
• These crimes are constituted due to the absence of consent of the victim, e.g. rape and
sexual assault.
ENFORCING SOCIAL MORALITY AND/ OR PREVENTING OFFENCE:
• The other sexual offences are primarily concerned with enforcing social morality and/ or
preventing offence. They constitute crimes, regardless of consent. For example, incest,
crimes against children (e.g. sexual abuse and grooming) and indecent exposure
! Statistic: The Crime Survey for England and Wales (March 2017): 3.1% of women and 0.8% of
men experienced sexual assault between March 2016-17.
WHAT IMPACTS THE TREATMENT OF SEXUAL OFFENCES?
• The field of sexual offences is structured according to the status of the victim and the
status of the defendant. Essentially, this means the features of the victim and defendant
can impact the treatment of the offence:
• Sexual assaults on children and on those with mental disorders are treated differently
from sexual assaults on competent adults.
• Defendants under the age of 18 are typically punished less severely than adults.
• Only a man can be guilty of rape, but the victim can be either male or female.
WHAT STATUTE COVERS SEXUAL OFFENCES?
PAST: CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994
• Sexual offences used to be heavily gendered. For example, the core crime of rape could
only be committed by a man against a woman and rather than being focused on respect
for the sexual autonomy of the victim, it was more concerned with violating the social
identity and status of a woman.
• Calls grew to rid the law of sexual offences of its gendered nature.
,CRIMINAL LAW REVISION NOTES
• The Criminal Justice and Public Order Act in 1994 did this. Henceforth, rape can be
committed on either a man or a woman. The Act also referred to the nature of rape as
being a bodily violation, rather than a source of social and economic affront.
• However, it is important to note that rape still requires a penetrating penis, rather than
an undesired penetration. This means only men can commit rape.
• Rape is still an offence largely conceived of and committed by men against women.
PRESENT: SEXUAL OFFENCES ACT 2003
• After this Act, came the Sexual Offences Act 2003 (hereafter, SOA 2003). The aim of this
Act was to reorder and restructure sexual offences.
• It also aimed to improve the prosecution of crimes and support victims, especially in the
context of campaigns calling for an end to violence against women.
• Part 1 of the Act enacts the newly constituted structure of sexual offences, which
includes rape, assault by penetration, sexual assault and causing a person to engage in
sexual activity without consent – these are non-consent crimes. Part 2 of the Act contains
measures that largely deal with the protection of the public. This part of the Act covers
child sex offences, other offences that take place in a family context and the abuse of a
position against those under 18.
⇩
2. SEXUAL OFFENCES (AGAINST ADULTS):
• The need for consent is key in the four offences below.
↓
1. RAPE:
• It is not relevant what kind of relationship the rape takes place in. It could be marital
rape, acquaintance rape, date rape or stranger rape.
• It is the non-consensual penetration of a person’s mouth, vagina or anus by a man’s
penis that constitutes the wrong in rape.
OVERVIEW OF RAPE:
→ S. 1 of SOA 2003 provides a statutory definition of rape. A person commits an offence
of rape if:
• He (A) intentionally penetrates the vagina, anus or mouth of another person (B) with his
penis; B does not consent to the penetration; and A does not reasonably believe that B
consents.
, CRIMINAL LAW REVISION NOTES
• Whether a belief is reasonable is determined by having regard to all the circumstances,
including any steps that A has taken to ascertain whether B consents. This is akin to
negligence.
• A person guilty of an offence under this section is liable to imprisonment for life.
WHAT DID THE ACT INTRODUCE/ CHANGE?
• The Act abandons the term ‘sexual intercourse’ and introduces ‘penetration’ by the
defendant’s penis instead. This seems to preserve the exclusively masculine status of the
defendant.
• The addition of forcible oral sex reflects that this practice can be as traumatic on the
victim as traditional rape and reflects the reality of such penetrative sexual attacks.
• The Act introduces a definition of consent and a number of presumptions to help the
prosecution prove the victim’s absence of consent and the defendant’s criminal fault.
• It also introduces a new fault element for rape, based on the lack of reasonable belief in
consent.
A. ACTUS REUS OF RAPE:
• In short, the actus reus elements of rape are: penile penetration; of the vagina, mouth or
anus; and an absence of consent.
1. PENILE PENETRATION:
• This means that penetration has to be with the defendant’s penis.
WHAT IS MEANT BY PENETRATION BY THE PENIS?
• The definition of rape makes it clear that the offence can only be committed by a man.
• Thus, a woman who pretends to be a man in order to have sexual intimacy, including
penetrative sex, with a woman is not guilty of the offence of rape.
• What exactly is it about the penetrating penis that constitutes the wrong in rape? The
Act assumes that it is the knowledge that rape as a legal concept has been committed,
as constituted by the penetrating penis, and thus that one is a victim of rape.
• It is a different offence of a similar severity if penetration occurs by an object or another
part of the defendant’s body – this covers cases where the defendant could be a woman
(section 2 of Act).
! This distinction should be questioned – why should rape not be committed irrespective of the
instrument or the gender of the penetrator? There remains an assault on the victim’s autonomy.
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