10 Sexual offences Introduction This is a sensitive area of criminal law.

. There is often a fine dividing line between lawful and unlawful acts here - many rapes, for example, do not match the stereotype of violent 'stranger' rape and are often committed by someone known to the victim in situations where there is a dispute as to whether the victim consented to sexual intercourse. These types of sexual offences are often difficult to prove and may hinge on the precise nature of an act or on assessing whether valid consent existed. Where the victim and the defendant are the only people present at the time of the offence this can be difficult and trials of sexual offences in court may involve sensitive and often traumatic uestioning of both parties about their alleged behaviour.

 The criminal law is only concerned with acts of a sexual nature which are non!consensual. "ther forms of touching another person which are non!consensual may be assaults but are not sexual offences, the latter usually being more serious charges. A process of radical law reform resulted in the passing of the Sexual "ffences #ct $00%, a comprehensive consolidation and amendment of the law in this area. The Act contains a very wide range of sexual offences ranging from rape to offences against children and offences related to the publication of pornography. &or the purposes of this course you will only need to know about the two most serious sexual offences contained in ss.1 and $ of the Act.

 These offences share a common mens rea but the actus reus elements of each offence are subtly different (although there is deliberate overlap between them). n order fully to understand these offences you will also need to develop a good !nowledge of the concepts of consent 'ss.()!(*+ and what is meant by the term 'sexual' 's.(,+.

10.1 -he social context of sexual offences The law on sexual offences incorporates some forms of behaviour which are inherently unlawful because they are considered to be harmful (whatever the circumstances in which they are committed) or because they are universally considered to be immoral (such as bestiality or sexual assault on a young child). .owever, the offences covered in this guide relate to sexual activities which are not inherently unlawful, but which, when committed without the consent of the victim, become unlawful. This ma!es the construction of criminal offences in this area difficult as legislators have to balance the protection of potential victims from harm and immoral conduct with the personal autonomy of citi"ens and their freedom to engage in the sexual activities of their choice.

 While it is always important that the boundaries of criminal liability are carefully drawn, to avoid undue interference with citi/ens' liberty on the one hand but to ade uately protect citi/ens from un#ustified harm on the other, an examination of the offence of rape in its social context demonstrates how in this area of conduct special care is needed in designing criminal offences which reflect the interests of both the victim and the defendant.

10.1.1 0hat is rape1 A stereotypical image of rape is the forced or violent imposition of sexual intercourse by a man (who is a stranger to the victim) upon a woman. -his, however, is rarely the form that rape takes in practice. $iolence may rarely be used and the victim and the perpetrator often !now each other% indeed they may even be in an intimate relationship with each other. 2oreover, the victim of rape may commonly be male or female. -he law has not recognised the notion of the female rapist, but undoubtedly there are situations in which a woman may force a man to commit a sexual act without his consent.

 &'()-*')('+T , Write a brief description of what you thin! the offence of rape is. -ow read +lar!son and .eating, pp./01-02, and answer the following3

 What are the common or stereotypical assumptions that society ma!es about the offence of rape4 What ob#ections do +lar!son and .eating raise to these assumptions4 5o you thin! (in general terms, not in legal terms) rape is a sexual offence, an offence of violence, or a form of trespass4 These 6uestions have no right or wrong answers and are designed to encourage you to thin! about what 7rape7 means in your own view or in your own social context. )irst, thin! about how you would describe the offence of rape without any reference to the law. Then you can compare your own views with those set out in the text of +lar!son and .eating. 8aving read that extract, have your views on rape changed4 9ou might li!e to discuss this with other students (if possible) and compare your description of rape with theirs.

10.1.$ -he level of sexual offending t is difficult to !now exactly how widespread sexual offending is in any society. This is partly because of the common assumptions about these offences that you reviewed in section 1:.1.1 above - some sexual practices may technically constitute an offence of rape but are not commonly regarded as such. This may also be because of the private and sensitive nature of sexual activities - many sexual offences may never be uncovered because victims do not report them. 'ven where they are reported, it has traditionally been very difficult to convict sex offenders because of evidential problems in assessing whether the victim consented and because a public trial in which such issues are discussed may be so traumatic for the victim (and in some cases for the defendant) that these parties are unwilling to give evidence.

 A+T $ T9 1:.1 *ead +lar!son and .eating in your study pac! and complete the following exercises. (ist as many reasons as you can thin! of why a victim may be reluctant to report a rape to the police. (ist as many reasons as you can thin! of why those incidents reported to the police may still not appear in the official statistics on rape. -o feedbac! provided.

Summary This section has examined the social context of sexual offences. )ocusing on the offence of rape, an examination of the meaning of the concept of rape, the !nown extent of this type of offending and literature on the problems of criminalising rape demonstrates how this is a sensitive and complex area of criminal law in which the boundaries of criminal liability need to be carefully drawn. ;&');( );*T8'* *'A5 -< (acey, -. ;nspea!able sub#ects. (,xford3 8art =ublishing, 100>) ? &@- 10:1ABCA2/D +hapter 2. Tem!in, E. *ape and the legal process. (,xford3 ,xford ;niversity =ress, C::C) ? &@:10>FBA//FD +hapter 1. 8order, E. and &. &hute 7The wrongness of rape7 in E. 8order (ed) ,xford essays in #urisprudence. (,xford3 ,xford ;niversity =ress, C:::) ? &@:10>CB>/>:D. +hilds, G. (C::1) 7&exual autonomy and the law7 B2 Godern (aw *eview A:0.

 1:.C The law reform process '&&'-T A( *'A5 -< Wilson, +hapter 1C3 7&exual offences7, &ection 1C.C 7The social context7 and &ection 1C.A 7*ape3 the historical context7. 8ome ,ffice, &etting the boundaries3 reforming the law on sex offences. ((ondon3 8ome ,ffice, C:::). &ummary report and recommendations. This is included in your study pac!. 8ome ,ffice, =rotecting the public3 strengthening protection against sex offenders and reforming the law on sexual offences. White =aper +G /BB> (T&,, C::C) ? &@- :1:1/BB>C2D +hapters C and A. n C::: the 8ome ,ffice began a process of reforming the law on sexual offences. n its existing form the law at that time was thought to be anti6uated and inconsistent with modern moral and social standards. Gany of the offences, though amended slightly over the years, had been defined in 10/B. The process began with the publication of a consultation paper called &etting the

boundaries (C:::). The paper set out reasons why current law was inappropriate or in need of reform, as well as suggestions as to how it should be changed. The paper then invited experts and members of the public who were interested to reply to the paper and offer their views on the proposed reforms. After the consultation period, a White =aper called =rotecting the public was published in C::C, which set out firmer proposals for changes to the law, in the light of comments on the consultation paper. )inally, a @ill was drafted which, following parliamentary debates in the 8ouses of +ommons and (ords, was passed as the &exual ,ffences Act C::A.

 A+T $ T9 1:.C *ead the summary report (pp.1->) and recommendations on pp.1-1B of the consultation paper &etting the boundaries and answer the following. What were the three main aims (or terms of reference) of the review of the law on sexual offences4 What recommendations are proposed to change the law on rape and sexual assault4 The proposals sought to modernise the law and ensure that activities which were becoming more common but which were difficult to criminalise under the previous law could be ade6uately punished (such as 7date rape7 and the use of a 7date rape7 drug). To some extent amendments to the original &exual ,ffences Act 10/B in 1002 and C::: had achieved this modernisation process by ensuring that male rape and marital rape were brought within the definition of the offence of rape. The reform proposals sought to clarify these amendments by setting out a clear definition of rape and sexual assault which incorporates all of the previous amendments.

 8owever, more widely, the reforms sought to re-thin! the law on sexual offences in order to achieve an appropriate balance between the interests of a defendant, a victim and the general public (as both potential victims and citi"ens whose moral standards need to be upheld). )urther, since the passing of the 8uman *ights Act in 100>, there was a need to ensure that the new law on sexual offences was human rights compatible. This meant balancing the due process rights of a defendant accused of an offence with the rights of a victim and the public to protection from sexual abuse and to see sexual offenders ade6uately punished.

 A+T $ T9 1:.A *ead +hapters C and A (and the introductory overview chapter) of the White =aper =rotecting the public and answer the following 6uestions. What were the problems with existing law which prompted the 8ome &ecretary to call the law on sexual offences 7archaic, incoherent and discriminatory74 What are the !ey recommendations made to improve the law on rape, sexual assaults and consent4 n what way do these recommendations differ from those made in the consultation paper &etting the boundaries4 8ow far have these recommendations provided an appropriate balance between the interests of the defendant, the victim and the public4

 &ummary The law on sexual offences has recently undergone a radical process of reform, culminating in the &exual ,ffences Act C::A, which contains the current law which is discussed in this chapter. The reform process has involved the publication of reform proposals and reconsideration of those proposals in the light of consultation. The reforms had a number of overriding aims, which sought to modernise and clarify the law on rape, sexual assaults and consent and to incorporate sexual activities which previously lay outside the law on sexual offences. ;&');( );*T8'* *'A5 -< Tem!in, E. (C:::) 7<etting it right3 sexual offences law reform7 1/: -(E 11B0. *'G -5'* ,) ('A*- -< ,;T+,G'& @y the end of this section you should be able to3 explain the inade6uacies of the previous law on sexual offences and identify the ways in which the &exual ,ffences Act C::A has changed liability for unlawful sexual acts.

1:./ The meaning of 7sexual7 '&&'-T A( *'A5 -< Wilson, +hapter 1C3 7&exual offences7, &ection 1C.B 7&exual assault7. @oth of the sexual offences outlined above re6uire that 5 commits an act or causes an act to be committed which is sexual in nature. This serves to distinguish between liability for sexual offences and liability for nonsexual assaults. Touching another without their consent may be an assault under common law, but it will only incur the more serious liability as a sexual offence if the touching can be considered to be sexual. The definition of rape in s.1 does not use the word 7sexual7% this is because it is presumed that to penetrate with the penis cannot be anything other than sexual. 8owever, s.C re6uires that the penetration must be sexual, because 5 may penetrate the vagina or anus of $ for a non-sexual purpose and this would not constitute a sexual offence. &o for s.C, it is an essential part of the actus reus, that you establish that the penetration is sexual. &ection F> &,A C::A gives further guidance on what

the meaning of 7sexual7 is. This section effectively confirms the common law meaning of 7indecent7 defined in +ourt ?10>0D A+ C>. &ome acts may be so inherently sexual in nature that no-one would 6uestion whether they are sexual and it may appear that the word 7sexual7 needs no further definition. f a man penetrates the vagina of a woman with his penis, few would define this act in any way other than as a sexual act. 8owever, many other activities may be rather more ambiguous and it may depend on the perpetrator7s purpose in committing the act. )or example, penetration of a woman7s vagina with a man7s finger may be viewed as sexual in some circumstances, or as a medical procedure in others. Whether the act is sexual or not may depend on a person7s sexual preferences or moral standards. n such a case, how are we to #udge whether an act is sexual or not4 Gore importantly, can we accept a defendant7s plea in defence to a charge that they considered their acts to be innocent4 &ection F> sets out a test for assessing whether an act is sexual in the following way3

 )or the purposes of this Act, penetration, touching or any other activity is sexual if a reasonable person would consider that3 whatever the circumstances or any person7s purpose in relation to it, it is because of its nature sexual, or, because of its nature it may be sexual and because of the circumstances or the purpose of any person in relation to it (or both) it is sexual. The first part of this test deals with acts which a reasonable person would consider inherently and unambiguously sexual. A defendant who claims that, by their moral standards or for their purposes, they did not consider their acts to be sexual would not avoid liability if, by ob#ective moral standards, the act was obviously sexual. The second part of the test deals with acts which are ambiguous. f it is not clear whether an act is sexual by ob#ective standards the #ury may consider the circumstances in which the act too! place or they may consider the sub#ective purposes of either the defendant or the victim in participating in it to ascertain whether it was in that case sexual. -ote that the test permits

consideration of 57s purpose but not his motive. As in all criminal offences, 57s motive, or reason, for committing an offence is irrelevant. A+T $ T9 1:.> *ead the case of <eorge ?10/BD +rim (* /C. Apply the test in s.F> &,A C::A to the facts of this case and assess whether the #ury would have found 5 guilty of a sexual assault under the new Act. 8ow, if at all, does this outcome differ from the decision made in that case under a previous &exual ,ffences Act4 A+T $ T9 1:.0 -ow read the case of +ourt ?10>>D C All '* CC1 and apply the test to the facts of that case and assess whether the #ury would have found 5 guilty of a sexual assault under the new Act. 8ow, if at all, does this outcome differ from the decision made in that case under a previous &exual ,ffences Act4 5oes your answer differ from your answer to activity 1:.>4 f so, why4 A+T $ T9 1:.1:

 *ead the case of * v8 ?C::/D 'W+A +rim FAC and consider the following 6uestions3 What were the material facts in this case4 Was 57s act inherently sexual4 f, not, was it inherently non-sexual4 f not, what circumstances were relevant to the #ury in deciding whether 57s act was sexual4 &ummary This section provides an exploration of the meaning of the word 7sexual7, an essential component in all the sexual offences which differentiates them from non-sexual assaults. &ection F> &,A C::A provides guidance on assessing whether an act is sexual where there is ambiguity regarding the nature of 57s acts. This section provides an ob#ective test which confirms the test previously set out in +ourt. The sexual nature of any act must therefore be determined by reference to the standards of the reasonable person. &'()-A&&'&&G'-T 6u'&Ti,-&

 ,utline, in no more than three sentences, the legal test for determining whether an act is sexual. What may a #ury ta!e into account in applying this test to an act which is not inherently sexual4 s this test ob#ective, sub#ective or both4 *'G -5'* ,) ('A*- -< ,;T+,G'& @y this stage you should be able to3 explore the meaning of the term 7sexual7 and understand how liability may arise in respect of acts which are ambiguous in terms of their sexual nature.