Sexual Offences Notes
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Criminal reading session 5 Sexual Offences
Sexual Offences Act 2003: • S.1: Rape is intentional penetration with the penis, where the penetrated party doesn't consent and the penetrating person does not reasonably believe they consent. To determine reasonable belief all evidence is taken into account, including steps taken to find out if the penetrated person consented.
• S.2: Assault by intentional penetration is where A sexually penetrates B's vagina or anus with another part of their body or object, where B doesn't consent and A does not reasonably believe that B consents
• S.3 Sexual Assault is where A intentionally, sexually touches B, where B doesn't consent and A doesn't reasonably believe B consents.
• S.4: Causing Sexual activity without consent: A intentionally causes B to engage in sexual activity without B's consent and A doesn't reasonably believe that B consents. (Ashworth's summary) • Conclusive presumptions in the SOA 2003 s.76: Consent is conclusively presumed negative if A does the act and either misled another as to the purpose of the act e.g. case where man told girls he was performing an exercise to help with breathing, when in fact it was intercourse; OR where A impersonates a person known to the victim e.g. a partner.
• Rebuttable presumptions s.75: (NB D has to know of the following circumstances for the presumption to be created) Where the burden of evidence shifts to the defendants if he also did the act and was aware of the following circumstances: There had been violence during or immediately prior to the act; one person caused another to fear violence; the complainant, unlike the defendant, was being forcibly detained at the time; the complainant was asleep/unconscious; the complainant's disability prevented him/her communicating lack of consent; or the complainant had been unwillingly administered a drug which was capable of enabling or causing them to be stupefied or overpowered at the time of the act.
• Rape of a child under 13 occurs if there is penetration, regardless of consent. • Assault of a child under 13 is same as normal offence except consent is not a defence.
• CPS guidelines have said there will be no prosecutions against children who kiss, but this does not mean that a successful prosecution is impossible. However what if they go further? Discretion in prosecution is inadequate as it leaves the law uncertain and can produce bad decisions since one person can decide whether or not a case should go to trial.
• Offences are created for inciting children to engage in sexual activity, being sexually active in the presence of children for gratification, sexually touching a person under 16, though a lower maximum penalty applies if a committer is under 18
• These offences relating to children are committed when the child is under 13 or when the committer did not reasonably believe that the child was 16 or over (and the child was not)
• Further offences are facilitating child sex offences in any part of the world; and meeting a child following sexual grooming (only committed by those aged over 18)
• Abuse of trust offences against a person under age 18: If a person in a position of trust has sex with their trustee, causes them to watch sexual material, incites them to have sex, has sex in front of them etc they are liable
• Familial sex offences: sexually touching a family member under 18 or inciting a family member to engage on sexual touching. Covers foster parents, adopted ones, step-parents etc.
• Penetrating or agreeing to be penetrated by a family member over 18 is penalise by up to 2 years in prison and covers oral sex, homosexuality etc.
• Causing sexual activity, inciting it or engaging in it with a person with a mental disorder is penalised. (end of Ashworth's summary)
• S.73: One is not guilty of aiding, abetting etc child sex offences, where one acts to prevent a child being harmed physically, getting pregnant, contracting disease, or prompting child's well being by giving advice, provided this is not for the purpose of getting sexual pleasure from causing child sex activity
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