1. Sexual Offences Act 2003 - Key Provisions and Case Law
Section 78: Definition of 'Sexual'
• Definition:
◦ The term 'sexual' covers 'penetration, touching or any other activity'. According to a reasonable person, this activity must be sexual in nature.
◦ This is an objective test.
Case Law
R v H [2005]
• Facts:
◦ D asked V if she wanted to have sex and grabbed her trousers, pulling her towards him. V ran home and D was arrested.
◦ D was charged with sexual assault.
• Legal Principles:
◦ Touching of Clothes:
▪ The case confirmed that touching a person’s clothes can amount to sexual assault.
◦ Two-Stage Test for Determining ‘Sexual':
1. Objective Test:
▪ Was the touching sexual by nature?
2. Subjective Test:
▪ Was the touching sexual based on its purpose or circumstances?
George [1956]
• Facts:
◦ D had a foot fetish and attempted to remove a girl's shoes.
◦ This act did not constitute sexual assault.
• Legal Principles:
◦ Demonstrates the application of the two-stage test. The act must be inherently sexual (objective) and understood as such within its context (subjective).
Historical Context of Consent
• Pre-2003 Act:
◦ There was no legal definition of consent before the Sexual Offences Act 2003.
◦ The Act provided a statutory definition of consent, emphasising the necessity for clear, voluntary agreement to sexual activity.
Key Provisions of Sexual Offences Act 2003
S.1 - Rape
• Actus Reus (AR):
◦ Intentionally penetrates the vagina, anus, or mouth of another person with his penis.
• Mens Rea (MR):
◦ V does not consent.
◦ D does not reasonably believe that V consents.
• Maximum Sentence:
◦ Life imprisonment.
S.3 - Sexual Assault
• Actus Reus (AR):
◦ Intentionally touches another person in a way that is sexual and non-consensual.
• Mens Rea (MR):
◦ V does not consent.
◦ D does not reasonably believe that V consents.
• Maximum Sentence:
◦ 10 years imprisonment.
Who Can Commit Rape
• Perpetrator Requirements:
◦ Rape can only be committed by someone with a penis. Penetration with objects or other forms of sexual contact are covered under other offences.
• Age of Criminal Responsibility:
◦ The age of criminal responsibility is 10 years. Below this age, a person cannot be legally held accountable for sexual offences.
Key Cases and Definitions
R v R (1991)
• Impact:
◦ Established that a husband can be convicted of raping his wife, rejecting the outdated notion that consent in marriage is perpetual.
Definition of Penetration
• Penetration is the insertion of the penis into the vagina, anus, or mouth.
• It is considered a continuing act from entry to withdrawal.
Summary
The Sexual Offences Act 2003 provides a modern legal framework for addressing sexual offences, focusing on the importance of consent and defining what constitutes sexual activity. The Act emphasises an objective standard for determining whether an act is sexual and requires that the perpetrator's belief in consent be reasonable. Case law, such as R v H and R v R, illustrates the application of these principles and the evolution of legal interpretations regarding sexual offences.