05/04/2011

Introduction
•  S & S, 421:
Non-Consensual Sexual
The Sexual Offences Act 2003 contains
Offences four major provisions that penalize D in
respect of non-consensual acts. These
Claire de Than offences are, respectively: rape; assault by
penetration; sexual assault; and causing a
person to engage in sexual activity without
consent …

Rape: penalty Rape: 2003 reforms

•  The maximum sentence for rape is life
imprisonment (Sexual Offences Act (SOA)
2003, s1(4)).
•  The SOA 2003 extended the scope of the
offence of rape, placed the definition of
consent on a statutory footing, introduced
certain evidential presumptions, and
altered the fault element of the offence of
rape.

Rape: definition Rape: actus reus

•  s 1 of the SOA 2003 provides:
(1) 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.
•  C. Elliott and F. Quinn, Criminal Law , 163:
[t]he actus reus of rape is committed
where a man has sexual intercourse with a
man or a woman without that person s
consent .
Olugboja [1982] QB 320
•  s 74 of the SOA 2003 applies to this
offence, and provides the definition of
consent

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Rape: mens rea
•  s 1 of the SOA 2003 requires intentional
penetration.
•  The SOA 2003 replaced the previous law with an
absence of reasonable belief in consent test.
•  According to SOA 2003, s 1(2), whether a belief
is reasonable is to be determined having regard
to all the circumstances, including any steps A
has taken to ascertain whether B consents .
Assault by penetration: definition
•  s 2 of the SOA 2003 provides:
(1) A person (A) commits an offence if –
a) he intentionally penetrates the vagina
or anus of another person (B) with a
part of his body or anything else,
b) the penetration is sexual,
c) B does not consent to the penetration,
and
d) A does not reasonably believe that B
consents.
Assault by penetration: mens rea
•  s 2 of the SOA 2003 requires intentional
penetration.
•  According to s 2(2), whether a belief in
consent is reasonable is to be determined
having regard to all the circumstances,
including any steps A has taken to
ascertain whether B consents .
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Assault by penetration: penalty
•  The maximum sentence for assault by
penetration is life imprisonment (SOA
2003, s 2(4)).
Assault by penetration: actus reus
•  The actus reus of assault by penetration is
committed where a man or a woman
sexually penetrates the vagina or anus of
another person without that person s
consent.
•  s 74 of the SOA 2003 applies to this
offence, and provides the definition of
consent.
•  There is a definition of sexual in s 78.
Sexual assault: penalty
•  The maximum sentence for sexual assault
is 10 years imprisonment (SOA 2003, s 3
(4)).
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Sexual assault: definition
•  s 3 of the SOA 2003 provides:
(1) A person (A) commits an offence if -
a) he intentionally touches another person
(B),
b) the touching is sexual,
c) B does not consent to the touching, and
d) A does not reasonably believe that B
consents.
Sexual assault: mens rea
•  s 3 of the SOA 2003 requires intentional
touching.
Heard [2007] 1 Cr App R 37
•  According to s 3(2), ‘whether a belief in
consent is reasonable is to be determined
having regard to all the circumstances,
including any steps A has taken to
ascertain whether B consents’.
Causing a person to engage in sexual
activity without consent: definition
•  s 4 of the SOA 2003 provides:
(1) A person (A) commits an offence if -
a) he intentionally causes another person
(B) to engage in an activity,
b) the activity is sexual,
c) B does not consent to engaging in the
activity, and
d) A does not reasonably believe that B
consents.
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Sexual assault: actus reus
•  The actus reus of sexual assault is
committed where a man or a woman
sexually touches another person without
that person s consent.
•  s 74 of the SOA 2003 provides the
definition of consent.
•  s 78 of the SOA 2003 provides the
definition of sexual .
R v H [2005] EWCA Crim 732
Causing a person to engage in sexual
activity without consent: penalty
•  The maximum sentence for causing a
person to engage in sexual activity without
consent is life imprisonment (SOA 2003, s
4(4); see too s 4(5)).
Causing a person to engage in sexual
activity without consent: actus reus
•  s 74 of the SOA 2003 provides the
definition of consent.
•  s 78 of the SOA 2003 provides the
definition of sexual .
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Causing a person to engage in sexual

activity without consent: mens rea
The definition of consent
•  According to s 74 of the SOA 2003, a
•  s 4 of the SOA 2003 requires an intention
person consents if he agrees by choice,
to cause another person to engage in an
and has the freedom and capacity to make
activity.
that choice .
•  According to s 4(2), whether a belief in
Bree [2007] Cr App R 13
consent is reasonable is to be determined
having regard to all the circumstances, R v B [2007] 1 WLR 1567
including any steps A has taken to R v H [2007] EWCA Crim 2056
ascertain whether B consents . R v Jheeta [2007] 2 Cr App R 34

Reasonable belief in consent

•  Sections 1-4 state that ‘whether a belief is
reasonable is to be determined having
regard to all the circumstances, including
any steps A has taken to ascertain
whether B consents .
R v Taran (Farid) [2006] EWCA Crim 1498

The conclusive presumptions The rebuttable presumptions

•  The conclusive presumptions apply (a), where D
intentionally deceived the complainant as to the
nature or purpose of the relevant act; and (b),
where D intentionally induced the complainant to
consent to the relevant act by impersonating a
person known personally to the complainant.
R v B [2007] 1 WLR 1567
R v Jheeta [2007] 2 Cr App R 34
R v Linekar [1995] 2 Cr App R 49
Devonald [2008] EWCA Crim 527
•  s 75(1) provides that it will be rebuttably
presumed that both consent and
reasonable belief in consent were lacking
if the prosecution can prove that the
defendant did the relevant act in any of the
circumstances specified by section 75(2)
and that the defendant knew of these
circumstances.

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Critical analysis
•  The pivotal definitions of consent and reasonable
belief in consent are vague.
•  D. Rodwell, Problems With The Sexual Offences Act
2003 [2005] Crim LR 290: should the defence be
consent and any of the evidential presumptions
contained in s. 75 of the Act apply to the case, then
considerable difficulties arise, because it is quite clear
that none of these presumptions may be applied to
attempts .
•  Office for Criminal Justice Reform, Convicting Rapists
and Protecting Victims – Justice for Victims of Rape
(2006), 8: the rate of conviction for rape has …
decreased from 33% … of cases reported to the police in
1977 to 7.5% … in 1999 to 5.29% … in 2004 .