Course work

2) Prior to the enactment of the Sexual Offences Act 2003, the law on sexual
offences was considered to be a patchwork quilt of provisions ancient and
modern that works because people make it do so, not because there is a
coherence and structure. (Setting the Boundaries: Reforming the Law on Sex
Offences, Home Office, iii, 2000).
Critically analyse whether the Sexual Offences Act 2003 has remedied these
criticisms.

Contents
Introduction................................................................................................................ 3
In-dept analysis of the Act and ways in which it responded to the criticism...............3
Sexual offences....................................................................................................... 5
Conclusion.................................................................................................................. 5
References.................................................................................................................. 7

Introduction
Society has time and again struggled to define what constitute the sexual crimes and ways in
which the criminals should be punished for committing the crime. The Sexual Offences Act
2003, UK implemented on 1st May 2004 replaced the older Sexual Offences Act 1956 with crisp,
specific as well as explicit words related to evaluation of crime and punishment that is required
and relevant in the present society.
The Home Office consultation paper which was published in July 2000 (Setting the Boundaries:
Reforming the Law on Sex Offences), identified the Sexual Offences Act 1956 or the then current
law on sexual offences as patchwork quilt of provisions ancient and modern. 1. Soon in
January 2003 the government responded to all these criticism and introduced a Sexual Offences
Bill with countless modifications on the sexual offences. The bill comprised of detailed
explanation of various types of sexual offences and its impact on human mind and body when
committed without individual consent 2. The term Consent has been specifically addressed in
the Act and also evaluated under different circumstances, such as rape, child pornography and
sexual tourism.

1 Richard Card, Sexual Offences (Jordans 2004).

2 Catherine Elliott and Frances Quinn, Criminal Law (Longman 2002).
3

In-dept analysis of the Act and ways in which it responded

to the criticism
The new law is an offshoot of the various responses against the Sexual Offences Act 1956 which
was in practice to identify and punish criminals who have committed sexual crimes. The new law
identifies a number of new offences and also mentions about the nature of punishment one has to
embrace if found guilty. Some of the newly added offences are assault by penetration, forcing a
minor to watch sexual act, nonconsensual voyeurism and penetration in any part. With an attempt
to bring changes the system decided to incorporate changes in the Part 1 of the Act and replaced
the older Act of 19563. In the present Act the Part 1 of Chapter 42,explain Rape as an
individual commits the offence only is proved he has intentionally penetrates the corpse or in the
words of law;
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.
The Act begins with the sexual offence Rape. In England rape is identified as an unlawful
sexual intercourse which is committed without the consent of the women. Sexual intercourse
included penetration of the body parts such as vagina or anus, and before the recent Act boys
under the age of 14years were identified to be incapable of committing rape. Thinker Tony
3 A Khan, 'Sexual Offences Act 2003' [2004] The Journal of Criminal Law, 68(3).
4

Honore, argues that as per the Roman Law 14 is the age of puberty and it is thought that most
boys attain sexual maturity by that age, and it is indecent to question on boys attainment of
puberty below that age4. The English Law however argues that biologically and from
psychologically at the age the boys can indulge into sexual activity. Thus while, in the earlier
Sexual Offences Act 1956, penetration of the mouth was not included in rape modifications, just
the organ was mentioned the new law changed the approach of evaluating the crime. Besides this
the Act also modifies the area in which the lack of consent could be proved. The modification
here mentions about assault by penetration by using any object through vagina or anus.
Such modification has been reviewed by the researchers and they identified that these new
changes about sexual assault demands the prosecution to prove few issues specifically, such as
penetration was intentional, absence of consent as well as lack of rational belief in consent 5.
According to the review published by the Jerseylaw, the assault by penetration could be
committed by a man on woman is intentional.
The law also includes provisions against sex tourism, which means people travelling abroad with
an intention to indulge into sexual offence could experience travel restriction or their passport
may be seized for practicing sexual tourism. This part of the Act has been highly criticized due to
lack of clarity and complexity in identification of the crime and punishing as per the crime
proved6.
4 Gov.uk, (2015)., 'Welcome To GOV.UK.' (2015) <https://www.gov.uk/ [Accessed 11
Mar. 2015]> accessed 26 March 2015.
5 Michael T Molan, Duncan Bloy and Denis Lanser, Modern Criminal Law (Cavendish
2003).
6 R Shiner, 'Theorizing Criminal Law Reform' [2009] Criminal Law, Philosophy
5

Besides this the group homosexual sex is now legally approved. Historically homosexuality was
a crime and has been prominently mentioned in the 1956 Act, however since homosexuality now
could be established with the help of some scientific evidence, the contemporary society has
adopted it as a practice between two adults7.
In the Part II of the Act, definition of child has been modified section 45 (2) from the way
Protection of Children Act 1978 assured protection of children. Now the Act ensures child
between 6 to 8 years of age protection from forced pornography. There are new sections inserted
in the Section 45, 1A of the 1978 Act as well as 160 A section of the Criminal justice Act 19888.
The Sexual Offences Act 2003 further added offences connected to any form of prostitution,
section 47 to 50 strictly restricts child prostitution, section 52 and 53 forbids pimping for earning
money, section 57 to 59 develop offences connected to sex trafficking. Besides these the Act
further adds a new section 33A typically focusing on the brothels. Another new section 51A was
included by the Policing and Crime Act 2009 focusing on restricting soliciting, this Act came
into force on the 1st of April 2010.9
The Sexual Offence Act 2003, however was enforced to respond against the criticism faced by
the government on Sexual Offences Act 1956, equally faced reactions and was questioned by the
critics on the various changes incorporated to offer improved protection and safety to the society.
The new Act faced severe criticism and raised controversy on the issue of criminalizing different
7 F Smith and A Carr, 'South Croyden: Children Act Enterprises Ltd.' [2004] The
Sexual Offences Act 2003.
8 www.legislation.gov.uk, 'Sexual Offences Act 2003' (2015)

9 L Zedner, 'Terrorizing Criminal Law' [2012] Criminal Law, Philosophy.

6

general behavior, and legalizing consensual sexual hugging in public open places etc. As per the
Home Office even mentioned, that legalizing such activity amidst a child and adult would affect
the child protection measures specially taken by the legislation10. A representative even
mentioned that the UK society is not ready to accept such changes suddenly. In most cases
teenagers indulge into sexual activity as per their preference and that is a harmless behavior.
Again this thought of using the criminal law for symbolic impact by Home office was severely
criticized by the professor of London Schools of Economics that the criminal law was dangerous
to be used only as symbolic purpose. The professor further mentioned that this modification
would encourage unfair activities in the society, such as give scope to the police to use the law
and control children for false reasons11.

Sexual offences
According to Mike Mohan in his Modern Criminal Law he mentioned about the Sexual offences
and the statutory changes applied on the law of rape 1956, 1976 and 1994. As per the law the
rape may be committed by a man on a woman without her consent. The issue of consent has
trouble for years and has raised questions like when a woman is sleeping, she cannot give
consent. Thus there are countless situations and arguments to establish the impact of the new law
and also highlight the flaws hidden in the legislation12.
The modification in the law therefore arguably intended to respond to the accusation made in the
particular publication. Though the changes were incorporated with high hopes, in reality after the
10 Catherine Elliott and Frances Quinn, Criminal Law (Longman 2002).
11 L Zedner, 'Terrorizing Criminal Law' [2012] Criminal Law, Philosophy.
12 R Shiner, 'Theorizing Criminal Law Reform' [2009] Criminal Law, Philosophy
7

implementation of the Act 2003, it equally suffered criticism for inherent limitation and lack of
insight in judgment about identifying crime and proving guilty. Some of the key issues such as
Consent, Child offences and Sexual tourism experienced severe criticism. In spite of
suffering criticism the new Act is an attempt to free the society from various types of sexual
crime13. The Act further attempts to offer complete protection to children, women and create a
healthy and safe environment for the holistic development of an individual.

Conclusion
Therefore it may be inferred that with the necessary modifications the Sexual Offences law,
partially fulfilled the expectation of people in punishing the criminals who have committed
sexual crimes and successfully challenged the criticisms raised on 1956 Act. The revised law,
Sexual Offences Act 2003 is well defined, specific, and explicit in communicating the offences
by replacing the language used in the older Act. New offences, as already discussed such as rape,
penetration, child abuse and consent were also included in the respective Part I and Part II of the
Act. However, the Home Office still raised question on the modification implemented in the
sexual activity of children stating that it would impact on the child protection measures. Thus, it
may be mentioned that though the system tried to incorporate changes, the attempts faced
limitation during practical implementation. When thoughts transferred in bold wording and Acts
developed, the Law apparently seemed flawless however in reality the law too faced limitation
during application. Thus it may be summed up here that though the Government responded with

13 www.legislation.gov.uk, 'Sexual Offences Act 2003' (2015)

8

new thoughts in this Act, in reality as per practical application of the law it could only partially
reply to the Home Offices criticism published in the article July 2000.

References
Card R, Sexual Offences (Jordans 2004)
Elliott C and Quinn F, Criminal Law (Longman 2002)
9

Gov.uk, (2015)., 'Welcome To GOV.UK.' (2015) <https://www.gov.uk/ [Accessed 11 Mar.

2015]> accessed 26 March 2015
Griffith R, Sexual Offences Act 2003 (2010)
Khan A, 'Sexual Offences Act 2003' [2004] The Journal of Criminal Law, 68(3)
Molan M, Bloy D and Lanser D, Modern Criminal Law (Cavendish 2003)
'Sexual Offences Act 2003: Key Concepts' [2015] Br J Midwifery, 18(8), pp.524-525.
Jerseylaw.je, (2015). Jersey Law | Jersey Law Review | The Sexual Offences Act, 2003 - is
Jersey falling behind?.
<https://www.jerseylaw.je/Publications/jerseylawreview/oct04/JLR0410_Whelan.aspx> accessed
26 March 2015
Shiner R, 'Theorizing Criminal Law Reform' [2009] Criminal Law, Philosophy
Smith F and Carr A, 'South Croyden: Children Act Enterprises Ltd.' [2004] The Sexual Offences
Act 2003
Thampy K, 'Sexual Offences And Human Rights A Critical Review Of The Sexual Offences
ACT 2003' [2004] A dissertation submitted for the award of the degree of Master of Laws.
<http://file:///C:/Users/iit/Documents/Srijita/2015/Ereuna/March%202015/11.3.2015/Law/s.pdf>
accessed 26 March 2015
www.legislation.gov.uk, 'Sexual Offences Act 2003' (2015)
<http://www.legislation.gov.uk/ukpga/2003/42/pdfs/ukpga_20030042_en.pdf> accessed 26
March 2015
Zedner L, 'Terrorizing Criminal Law' [2012] Criminal Law, Philosophy

10