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Sexual Offences 

Sexual Offences
Chapter:
Sexual Offences
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806387.003.0022
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Subscriber: null; date: 15 August 2018

22.1 Introduction

Your examination syllabus covers some, but not all, of the Sexual Offences Act 2003. In this first section you will examine some of the more common sexual offences, along with issues relating to consent and the terms ‘sexual’ and ‘touching’. The fact that the ‘Sexual Offences’ section in your Manual is small in comparison to the other sections of the Manual should not be misinterpreted as meaning that this section is unimportant. There is a strong chance you will be asked a significant number of questions relating to this legislation.

22.2 Aim

The aim of this section is to provide you with an insight into ss. 1 to 4 of the Sexual Offences Act 2003 and their associated topics.

22.3 Objectives

At the end of this section you should be able to:

  1. 1. State when victims of sexual offences are entitled to anonymity.

  2. 2. Define the offence of rape contrary to s. 1 of the Sexual Offences Act 2003.

  3. 3. Explain the issues surrounding consent under ss. 74, 75 and 76 of the Sexual Offences Act 2003.

  4. 4. Outline the meaning of the terms ‘sexual’ and ‘touching’.

  5. 5. Identify when offences under ss. 1 to 4 of the Sexual Offences Act 2003 have been committed.

  6. 6. Apply your knowledge to multiple-choice questions.

22.4 Anonymity

22.4.1 Exercise—Anonymity or Not?

Examine the following scenarios and decide:

  1. i. whether the victim would be entitled to anonymity owing to the nature of the offence;

  2. ii. whether the age of the victim impacts on anonymity; and

  3. iii. if they are entitled to anonymity, how long would it be for?

  4. 1. MANSFIELD is a 32-year-old victim of an offence of rape.

    • Is MANSFIELD entitled to anonymity because of the nature of the offence?

    • Yes / No

    • Does MANSFIELD’s age impact on anonymity?

    • Yes / No

    • For how long, if at all, would MANSFIELD be entitled to anonymity?

    • ____________________________________________________________________________________

  5. 2. RILEY is a 14-year-old victim of an offence of sexual assault by touching.

    • Is RILEY entitled to anonymity because of the nature of the offence?

    • Yes / No

    • Does RILEY’s age impact on anonymity?

    • Yes / No

    • For how long, if at all, would RILEY be entitled to anonymity?

    • ____________________________________________________________________________________

    • ____________________________________________________________________________________

22.5 Rape

22.5.1 Exercise—FORSYTH Scenario

Examine the following scenario and then answer the questions, giving a short reason for your answer where appropriate.

FORSYTH (a 27-year-old male) is in a pub when he sees STEWART (an 18-year-old female). FORSYTH introduces himself to STEWART and buys her a drink and they talk for a while. There are no seats available inside the pub so the two walk outside into a deserted garden area and continue to talk. Several minutes later FORSYTH and STEWART begin to kiss and FORSYTH fondles STEWART’s breasts with her consent. FORSYTH pushes STEWART to the floor so that she is kneeling down in front of him. He unzips his trousers and pushes his erect penis towards STEWART’s mouth. STEWART says, ‘No don’t, I don’t want to, I don’t like oral sex.’ FORSYTH ignores STEWART and pushes his penis into her mouth. Moments later FORSYTH takes off his trousers and pants and forces STEWART to lie down. As he does this, STEWART says, ‘Don’t do it you bastard!’ FORSYTH pulls down STEWART’s pants and attempts to put his penis in her vagina, but STEWART resists and punches FORSYTH in the face. FORSYTH retaliates and punches STEWART in the face several times. He tells STEWART he will kill her if she does not let him have sexual intercourse with her. STEWART believes FORSYTH and stops resisting. FORSYTH penetrates STEWART’s vagina with his penis but does not ejaculate. Several minutes later, FORSYTH takes his penis out of STEWART’s vagina, dresses and leaves.

  1. 1. What is the definition of rape?

  1. 2. At what point, if at all, is the offence of rape first committed by FORSYTH?

  2. 3. The fact that FORSYTH did not ejaculate would cause difficulty for the prosecution if FORSYTH were ever charged with an offence of rape.

22.6 Consent and Presumptions

Let’s return to the scenario involving FORSYTH and STEWART.

STEWART leaves the pub in a state of shock. She makes her way back to her flat and, having given the incident considerable thought, she decides that she will contact the police and make a complaint of rape against FORSYTH. She visits her local police station and reports the offence. DS NORTHWAY and several officers on her crew deal with the case. One of those officers is TI LAPWORTH. TI LAPWORTH is instructed to obtain a statement of complaint from STEWART. STEWART gives an account of the incident at the pub to the officer.

22.6.1 Exercise—Issues Regarding Consent

Concentrate on the issue of consent under s. 74 of the Sexual Offences Act 2003. What should TI LAPWORTH be considering when STEWART tells her about the incident?

  • ____________________________________________________________________________________

  • ____________________________________________________________________________________

  • ____________________________________________________________________________________

  • ____________________________________________________________________________________

  • ____________________________________________________________________________________

22.6.2 Exercise—Conditional Consent

This aspect of ‘consent’ law has come about as a result of a number of high-profile case law decisions by our High Court.

Examine the below scenarios and consider whether consent is present.

  1. 1. GRAVE agrees to have sexual intercourse (penis to vagina) with PLATTER. GRAVE tells PLATTER that she is happy to have sex with him but makes it clear that he must wear a condom. PLATTER agrees but does not have a condom. He pretends to have put one on his penis and has sexual intercourse with GRAVE.

    Consent present?

    Yes / No

    Why / Why not?

    ____________________________________________________________________________________

What if PLATTER originally wears a condom but during sexual intercourse feels that it is hindering his sexual performance, removes his penis from GRAVE’s vagina, takes off the condom and then places his penis back into GRAVE’s vagina (all the time GRAVE believes that PLATTER is wearing a condom)? Would this alter the situation?

Yes / No

Why / Why not?

____________________________________________________________________________________

  1. 2. THOMAS has split up with her husband because of his violence and sexual abuse towards her but during a meeting between the two she agrees to have sexual intercourse with her husband one last time on the express condition that her husband will not ejaculate inside her. Her husband has sexual intercourse with her and deliberately ejaculates inside her.

    • Consent present?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

22.6.3 Exercise—Rebuttable Presumptions

Consider the provisions under s. 75 of the Sexual Offences Act 2003 (Evidential Presumptions About Consent) and answer the following questions.

The existence of certain specified circumstances (under s. 75(2)) may allow the court to presume that the victim did not consent to the act and the defendant did not reasonably believe the complainant consented.

Rather than ask you to write down what these circumstances are, let’s see if you recognise any of them in the following scenarios. Say whether the presumption can be made. We will start with FORSYTH.

  1. A. FORSYTH was using violence against STEWART immediately before he had sexual intercourse with her.

    • The presumption can / cannot be made.

  2. B. RABIN approached LAWLOR who was pushing a pram containing her two-month-old baby. RABIN produced a knife and told LAWLOR he would stab her child to death that instant if she did not have sexual intercourse with him. LAWLOR had sexual intercourse with RABIN.

    • The presumption can / cannot be made.

  3. C. HUGHES has kidnapped EDGE and keeps him locked in a garage. HUGHES asks EDGE if he could have anal sex with him and EDGE replies ‘Yes’. HUGHES penetrates EDGE’s anus with his penis.

    • The presumption can / cannot be made.

  4. D. HARPER goes to a party and has too much to drink. She goes into a bedroom and falls unconscious on a bed. KITSON enters the bedroom and decides to have sexual intercourse with HARPER while she is unconscious.

    • The presumption can / cannot be made.

  5. E. COELLO is mute and because she is paralysed from the neck down she is confined to a wheelchair. INGLEY approaches her and asks her for sexual intercourse. When she does not reply, INGLEY takes her out of her wheelchair and has sexual intercourse with her.

    • The presumption can / cannot be made.

  6. F. PICKFORD places a date-rape drug into ROBSON’s drink, causing her to be stupefied. PICKFORD takes ROBSON to his flat and has sexual intercourse with her.

    • The presumption can / cannot be made.

The final section dealing with presumptions about consent is s. 76 of the Act.

22.6.4 Exercise—Irrebuttable Presumptions

Examine the following scenarios and state whether a presumption under s. 76 would be drawn.

  1. 1. TIPPIN is a music teacher. He tells WIGLEY, one of his students, that if she has sexual intercourse with him it will improve her singing voice. As a result, WIGLEY allows TIPPIN to have sexual intercourse with her.

    • The presumption can / cannot be made.

    • Why / Why not?

    • ____________________________________________________________________________________

    • ____________________________________________________________________________________

  2. 2. JOHN and JAMES FELTHOUSE are twin brothers and have been seeing their respective girlfriends for six months. They decide it would be funny to exchange girlfriends for the evening. The brothers exchange girlfriends and have sexual intercourse with them, each pretending to be the other brother. The girlfriends are unaware that they have slept with a different brother.

    • The presumption can / cannot be made

    • Why / Why not?

    • ____________________________________________________________________________________

22.7 ‘Touching’ and ‘Sexual’

22.7.1 Exercise—FARREL Scenario

Before you examine the offences under ss. 2, 3 and 4 of the Act, you must understand the terms ‘touching’ and ‘sexual’. Answer the following questions with regard to those terms after reading the following scenario.

FARREL (a 21-year-old male) and HALLARD (a 20-year-old female) are common-law husband and wife. They place an advertisement in a local paper stating that they have a second-hand designer wedding dress for sale. LLOYD (a 30-year-old female) contacts them and arranges to visit their house to inspect the wedding dress. The truth is that FARREL and HALLARD do not have a dress for sale. They have placed the advertisement in the paper in an attempt to lure a lone female to their house, where they plan to sexually assault and murder their victim. At the arranged time, LLOYD arrives and is shown into the lounge of the house by HALLARD. HALLARD asks LLOYD if she would like a cup of tea and LLOYD replies that she would. HALLARD makes LLOYD a drink and the two women talk about weddings for several minutes before LLOYD asks to see the wedding dress. HALLARD tells LLOYD that the dress is in a wardrobe in her upstairs bedroom and suggests that she view the dress there. LLOYD agrees and the two women go upstairs. HALLARD walks through the bedroom door followed by LLOYD. As LLOYD walks into the bedroom and past the door, FARREL (who has been hiding behind the bedroom door) approaches LLOYD from behind and places a chloroform-soaked rag to her mouth and nose. LLOYD struggles but is quickly rendered unconscious. When LLOYD wakes up she is still in the bedroom and fully clothed, but she is tied to a chair by her feet and hands and has been gagged. FARREL and HALLARD are both fully clothed and sitting on a bed watching her.

  1. 1. FARREL walks over to LLOYD and strokes her skirt. He does not actually touch her body. While he does this he says to LLOYD, ‘Fancy a shag?

    • Is this ‘touching’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

    • ____________________________________________________________________________________

    • Is this ‘sexual’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

  2. 2. FARREL moves his hand onto LLOYD’s leg and strokes her leg through her skirt saying, ‘Go on, will you shag me?

    • Is this ‘touching’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

    • Is this ‘sexual’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

  3. 3. HALLARD picks up a riding crop from the bed. She walks over to LLOYD and stands next to her. She rubs the end of the riding crop against LLOYD’s breasts and says, ‘I’m going to fuck you.’

    • Is this ‘touching’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

    • Is this ‘sexual’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

  4. 4. FARREL takes off his jeans and masturbates his penis against LLOYD’s arm (through her blouse). He does not say anything.

    • Is this ‘touching’?

    • Yes / No

    • Why / Why Not?

    • ____________________________________________________________________________________

    • Is this ‘sexual’?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

22.8 Offences Under ss. 2, 3 and 4 of the Act

22.8.1 Exercise—Developing the FARREL Scenario

FARREL and HALLARD subject LLOYD to a horrific sexual attack lasting a number of hours. At the end of the attack they leave LLOYD naked, gagged and tied to a bed. They tell LLOYD they will be back in an hour to further abuse her and then kill her. After FARREL and HALLARD leave, LLOYD struggles violently to escape her bonds. She manages to free one of her hands and from there she is able to remove her gag and free herself. She tries to escape through the bedroom door but it is firmly locked. She runs to the window and pulling back the curtains she bangs on the window and screams for help.

While LLOYD was being attacked, her fiancé, JARVIS, had become concerned for her welfare. He tried to ring LLOYD on her mobile phone but received no reply. LLOYD had told JARVIS where she was going and so JARVIS drove to FARREL and HALLARD’s house. He saw LLOYD’s car parked near to the house and, believing that LLOYD was still looking at the wedding dress, he decided to join her. As he walked towards the front door he saw his naked fiancée banging on an upstairs window and heard her scream for help.

JARVIS forces the front door of the house and runs into the house and upstairs. He kicks open the bedroom door and finds LLOYD in the bedroom. She tells JARVIS what has happened and JARVIS gets her out of the house and contacts the police. The police attend and, after speaking to LLOYD and JARVIS, they lie in wait for FARREL and HALLARD to return. When they do, they are arrested.

LLOYD provides the police with a precise account of the incident, stating exactly what happened during her ordeal.

There follows a table listing the actions of FARREL and HALLARD. For each action choose one offence you think has been committed; e.g. place a tick in column 2 for an offence of assault by penetration.

Action

1

2

3

4

1

FARREL penetrates LLOYD’s vagina with a vibrator

2

HALLARD orders LLOYD to masturbate FARREL

3

FARREL makes LLOYD penetrate HALLARD’s vagina with her tongue

4

FARREL penetrates LLOYD’s vagina with his penis

5

HALLARD penetrates LLOYD’s vagina with a glass bottle

6

FARREL penetrates LLOYD’s vagina with his tongue

7

FARREL penetrates LLOYD’s anus with a vibrator

8

HALLARD kisses LLOYD’s buttocks

9

FARREL penetrates LLOYD’s anus with his penis

10

FARREL penetrates LLOYD’s anus with his finger

11

FARREL forces LLOYD to penetrate HALLARD’s vagina with a vibrator

12

HALLARD penetrates LLOYD’s anus with her tongue

13

HALLARD forces LLOYD to penetrate her own vagina with her own fingers

14

HALLARD penetrates LLOYD’s anus with a knife

15

FARREL compels LLOYD to lick HALLARD’s vagina

16

FARREL penetrates LLOYD’s mouth with his penis

17

FARREL fondles LLOYD’s breasts

22.9 Conclusion

Now that you have finished this section, you should be able to differentiate between the offences created by ss. 1 to 4 of the Sexual Offences Act 2003. You should be capable of identifying consent issues under the three appropriate sections and you should also be able to explain the terms ‘sexual’ and ‘touching’, which are of crucial importance to this category of offence. These abilities will assist you to answer questions on the subject in the NIE.

22.10 Recall Questions

Try and answer the following questions.

  • Who is entitled to anonymity and for how long?

  • What is the definition of rape? (Can you remember the mnemonic?)

  • What does s. 74 of the Sexual Offences Act 2003 say about consent?

  • List the six circumstances where a rebuttable presumption of consent may be raised by s. 75(2) of the Act.

  • What would need to be proved for this section to apply?

  • What does the law say with regard to surgically constructed body parts?

  • What are the two circumstances where an irrebuttable presumption about consent can be raised?

  • What does the term ‘sexual’ mean?

  • What does the term ‘touching’ mean?

  • What is the actus reus of an offence under s. 2 of the Sexual Offences Act 2003?

  • When could you receive life imprisonment for committing an offence under s. 4 of the Sexual Offences Act 2003?

  • What is s. 4 of the Sexual Offences Act 2003 about?

22.11 Multiple-Choice Questions

Answers to these questions can be found in the ‘Answers Section’ at the end of the book. All explanations also include a reference back to the Investigators’ Manual 2018.

1. ABBOTT (who is 19 years old) is the victim of an offence of assault by penetration (an offence under s. 2 of the Sexual Offences Act 2003). DC COLES is investigating the offence and interviews ABBOTT. During the interview, ABBOTT expresses concern about her details becoming known to the public.

What response should DC COLES give?

  1. A ABBOTT will be entitled to anonymity until she is 21 years old.

  2. B ABBOTT will be entitled to anonymity until she is 24 years old.

  3. C ABBOTT will not be entitled to anonymity.

  4. D ABBOTT will be entitled to anonymity throughout her lifetime.

Answer _____________________________

2. EMERY and her common-law husband JOYCE are both serial sex offenders. They kidnap PORTER while she is walking her dog in a park and drag her into a nearby hut, where they sexually abuse her. During the attack, EMERY forces her fingers into PORTER’s anus. Moments later, JOYCE forces his fingers into PORTER’s vagina before forcing his penis into PORTER’s mouth and ejaculating.

At what point, if any, is the offence of rape first committed?

  1. A When EMERY forces her fingers into PORTER’s anus.

  2. B When JOYCE forces his fingers into PORTER’s vagina.

  3. C When JOYCE forces his penis into PORTER’s mouth.

  4. D The offence of rape is not committed in these circumstances.

Answer _____________________________

3. MATELIN was born a male, but has had hormone treatment to create breasts and has had gender reassignment surgery to replace the penis with a surgically constructed vagina. While walking along a street, MATELIN is approached from behind by SUTTON who pushes MATELIN into a nearby alleyway. SUTTON digitally penetrates MATELIN’s surgically constructed vagina and then digitally penetrates MATELIN’s anus.

Does SUTTON commit an offence of assault by penetration (contrary to s. 2 of the Sexual Offences Act 2003)?

  1. A Yes, but only when he digitally penetrates MATELIN’s anus.

  2. B No, although the offence can be committed by either sex, the victim must be female.

  3. C Yes, when he penetrates MATELIN’s surgically constructed vagina.

  4. D No, this offence can only be committed when penetration is carried out with something other than a part of the body.

Answer _____________________________

4. WALTON has a fetish for feet. He gets a job at a shoe shop in order to satisfy his desires and obtains sexual gratification every time he touches a customer’s foot when he is helping them to try on a pair of shoes. WALTON realises that shop customers would not consent to him touching their feet if they knew he was obtaining sexual gratification as a consequence.

Considering the offence of sexual touching (contrary to s. 3 of the Sexual Offences Act 2003) only, which of the following statements is correct?

  1. A WALTON does not commit the offence because a reasonable person would not regard his fetish as being ‘sexual’.

  2. B The fact that WALTON obtains sexual gratification from the touching means that it is ‘sexual’ and as a consequence he commits the offence.

  3. C The offence is not committed in these circumstances because WALTON has not touched a sexual organ or orifice.

  4. D WALTON commits the offence because he did not believe that his victims would consent to the activity.

Answer _____________________________