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Sexual Offences
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Lecture notes on sexual offences
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CL – Week 10 – Sexual offencesPart 1 – introduction to sexual offences
Sexual Offences Act 2003
- More than 50 offences in the statute and contains 143 statutory sections, plus the schedules
- Rape (s.1)
- Sexual Assault (s.3)
Why the SOA 2003?
- Previous law incoherent and lack structure
- Outdated vision of human relationships who needed protection
- Gaps in legal concepts
Historical perspective on sexual violence
- In western nations sexual assault can be traced back to Jewish and Christian traditions
- Always be recognized in law, in England since the 9 th century
- And yet gaps abound between the laws and the reality of the criminal justice system
o Due to rape myths and prejudices – myth that the victim must resist and if they do not,
they consent – centuries it was thought men could not be victims
- Police more likely to ‘no crime’ or ‘NFA’
- Juries more likely to acquit
- Conviction rate of about 6-7% of all cases reported – significant number of cases no reported
- False allegations are rare
- Most cases are not ‘stranger rape’ this is a myth – 90% of rape is committed by family and close
friends
Education
- Not just on sex and consent but emotional intelligent across gender
- Education should stray from stereotypes - ‘man up’ etc. Not taught to deal with their emotions
and then they are unable to recognize emotions in others
- Alison sanders – speech at National Rape conference on rape
Changes in substantive law – the SOA 2003
- ‘There is a trend within the substance of the sexual offense that is somewhat out of step with
other offenses against the person’
- ‘Offences within the SOA 2003 are notable for their use of a wide actus reus, as well as the use
of objective, as opposed to subjective, men's rea requirement’
- Statutory offences with case law to interpret them
Issues around consent
- In the law consent has a different definition – the victim consenting themselves and what the
defendant thought they had consented
Part 2 – the structure of Rape and Sexual assault
, Rape (s.1)
- A person commits an offense if he intentionally penetrates the vagina, anus or mouth of another
person with his penis, B does not consent to the penetration and A does not reasonably believe
that consents
- 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’
- S 79, 74 and 76
- Penetration by penis only – not by an object – s79(3) ‘any part of the body’ include surgically
constructed body parts – so can include transexuals
- Defendant can only be male; victim can be both male and female
- MR – intention of penetration – case of Mohan
Sexual Assault (s.3)
- Intentionally touches another person and the touching is sexual, B does not consent to the
touching, A does not reasonably believe that B consents
- Touching – s79(8) includes any part of the body with any part of body or an object – can be
through clothing case of H Karl Anthony 2005
- Sexual – circumstances or any person's relation to it because of its sexual nature
- Case pf H (Karl Anthony) (2005) test
o Would a reasonable person think that b/c of its nature the act may be sexual?
o Would a reasonable person think, looking at the circumstances involved and/or D or
another’s purpose in relation to the act, the act was sexual?
o Example is case of Court (1989) - a spank on the bottom
- MR – lack of reasonable belief in consent and whether it was intentional
Part 3 – Introduction to consent (AR)
- Absence of consent – definition of consent in s.74 not met
- Where the reform was meant to change
Section 74 defines consent – V agreed by choice and had the freedom and capacity to choose
- What was the agreement
- Did V have the freedom to choose?
- Did V have the capacity to choose
2 questions arise
- Whether, on the facts od V gave consent or not (agreed) - ‘factual consent’
- Whether this was valid – did V have the choice and freedom/capacity to choose?
S74 – ‘agreed by choice’
- Can be expressed/implied through words/conduct
- Case of Malone 1998 – not necessary they protest
S.74 - Freedom to choose.
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