DLM Module 6 PDF

To provide: background to the development of legislation in relation to sexual offences an overview of the legislation in relation to sexual offences in the United Kingdom (UK) the essential/basic information required as outlined in the syllabus for various FFLM examinations When you have complete...

To provide: background to the development of legislation in relation to sexual offences an overview of the legislation in relation to sexual offences in the United Kingdom (UK) the essential/basic information required as outlined in the syllabus for various FFLM examinations When you have completed this module, you should expect to be able to: explain how sexual offences legislation developed describe the current legislation in relation to sexual offences in the UK have an understanding of the implications of increased reporting and the consequences of this on the Criminal Justice System A number of FFLM examinations include in the syllabus a requirement to have knowledge of sexual offences; these are: the Diploma of Legal Medicine, (DLM) see paragraph 4.4, https://fflm.ac.uk/wp-content/uploads/2020/06/DLM-RegulationsFinal.pdf the Membership in Sexual Offence Medicine (MFFLM, SOM) see Schedule 1, paragraph 4.3, page 19 and Schedule 4, paragraph 5, page 33, https://fflm.ac.uk/wp-content/uploads/2020/06/MFFLMRegulations-Final.pdf the Membership in General Forensic Medicine (MFFLM, GFM), see Schedule 1, paragraph 4.3, page 19 and Schedule 3, paragraph 5, page 30 (GFM) the Licentiate in Sexual Offence Medicine, (LFFLM, SOM), part 6 (Legal), https://fflm.ac.uk/wp-content/uploads/2020/06/LFFLM-SOMRegulations-Final-10.06.2020.pdf the Licentiate in General Forensic Medicine (LFFLM, GFM), part 6 (Legal), https://fflm.ac.uk/wp-content/uploads/2020/10/LFFLM-GFMRegulations-Final-10.06.2020.pdf Sexual Offences Act [2003] and [1956] & other relevant legislation across UK jurisdictions [DLM and MFFLM] Sexual Offences Act [2003] and [1956] [LFFLM SOM] Sexual offences are important because: they are common (see boxes and links) society regards them as serious and the laws developed recognise this, in terms of the consequences for and sanctions against those who are convicted of such offences; e.g. long custodial sentences, registration as a sex offender and its potential impact on employment and travel they have an impact on the individual who has been assaulted, with both short and long term consequences, as well as on society Box 1 England and Wales crime figures to the year-end December 2020, published May 2021 151,059 sexual offences were reported to the police (a 7% decrease compared with the previous year), of which: - 55,632 were allegations of rape (a 6% decrease) - 95,427 were other sexual offences See: https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendi It is important to note that within the bulletin, it is acknowledged that there has been an impact due to the COVID-19 pandemic, as well as other factors: ‘There were fluctuations in the level of crime experienced in England and Wales throughout 2020. This is supported by findings from the Telephone-operated Crime Survey [TCSEW] and police recorded crime data. Although a small proportion of these fluctuations will be the result of seasonal effects on crime trends, the majority can be attributed to the introduction and subsequent easing of national lockdown restrictions throughout the year.’ ‘Because of the change in data collection mode, there is a break in the CSEW data time series. TCSEW estimates are not directly comparable with those previously published from the face-to-face CSEW.’ ‘Sexual offences and domestic abuse-related crimes recorded by the police do not provide a reliable measure of trends in these types of crime. Improvements in police recording practices and increased reporting by victims have contributed to increases in recent years, although this effect is thought to be diminishing. The figures do, however, provide a good measure of the crime-related demand on the police.’ Data from the Crime Survey in England & Wales, (March 2020), shows about 1.8% of people, aged between 16 and 74, had experienced a sexual assault within the last year, a decrease from 2.4%, in the report to March 2019. Further information is available in the report: Sexual Offences in England & Wales overview: year ending March 2020, see: https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/sexualoffence sinenglandandwalesoverview/march2020 This report also addresses the increase in reports over the last 15 years, or so and are explained for a number of reasons, which include: Better recording of crimes by police A greater willingness to come forward Box 2 Northern Ireland crime figures for Northern Ireland to the year end 31 January 2021 Sexual offences decreased by 8.3 per cent (291 offences). Within this classification rape offences decreased by 3.6 per cent (36 offences) and other sexual offences decreased by 10.2 per cent (255 offences). See: https://www.psni.police.uk/globalassets/inside-the-psni/our-statistics/police-recorded-crimestatistics/2021/january/crime_-bulletin-jan-21.pdf Box 3 Scotland crime figures for Scotland in the year to April 2020 Sexual crimes account for 5% of all crimes reported in Scotland There were 13,364 sexual crimes reported (a decrease of 1% compared with 2019) There were 2,343 allegations of rape and attempted rape, (a decrease of 3% compared with 2019) There were 4,936 allegations of sexual assault, (a decrease of 4% compared with 2019) See: https://www.gov.scot/publications/recorded-crime-scotland-20192020/pages/3/#:~:text=The%20total%20number%20of%20crimes,24%25%20since%202010%2D11 It is important to be aware that definitions, for example, of rape, will vary across jurisdictions, and this module will focus on the law in England and Wales, Northern Ireland and Scotland. The Crown Dependencies, that is the Bailiwicks of Guernsey and Jersey and Channel Islands and the Isle of Man are not part of the UK, and have their own separate sexual offences legislation, e.g. Isle of Man: Sexual Offences Act 1992 and Sexual Offences (Amendment) Act 2006 https://www.legislation.gov.im/cms/images/LEGISLATION/PRINCIPA L/1992/1992-0006/SexualOffencesAct1992_5.pdf http://www.legislation.gov.im/cms/images/phocadownload/Acts_of_Tyn wald/Primary_2006/Sexual%20Offences%20(Amendment)%20Act%20 2006.pdf Jersey: Sexual Offences (Jersey) Law 2018 https://www.jerseylaw.je/laws/enacted/Pages/L-20-2018.aspx These are not considered further, in this module. One further aspect to consider is the age of criminal responsibility, which is 10 years in England and Wales and Northern Ireland. https://www.gov.uk/age-of-criminal-responsibility In Scotland, the age of criminal responsibility is lower, at age 8 years, (and the lowest in Europe); although in 2011, the minimum age of prosecution was raised to 12 years. However, the first significant step towards raising the age of criminal responsibility was made when the Age of Criminal Responsibility (Scotland) Act, see: https://www.legislation.gov.uk/asp/2019/7/contents, was passed unanimously by the Scottish Parliament, in May 2019, and received Royal Assent in June 2019. Section 1 states: ‘….a child under the age of 12 years cannot commit an offence,’ However, this section of the Act has yet to be implemented, (as of June 2021). The Scottish Government is working towards its implementation, therefore, it is essential to check for progress and updates on their website; see: https://www.gov.scot/policies/youth-justice/raisingage-criminalresponsibility/#:~:text=The%20Age%20of%20Criminal%20Responsibility%20(Scotland)%20 Act%202019%20was%20passed,Scotland%20from%208%20to%2012 More information regarding the current position is included in a UK Parliamentary briefing paper (Ref. McGuiness T. Briefing paper Number 7687). The age of criminal responsibility. 2016. House of Commons Library. See: http://researchbriefings.files.parliament.uk/documents/CBP7687/CBP-7687.pdf Proposals and evidence were presented to the UK Parliament’s Justice Select Committee, in November 2020, in respect to the age of criminal responsibility; see: https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/306/30608.ht m Nevertheless, it is of note that all the UK’s sexual offences legislation deems a child aged under 13 years, as unable to consent to any form of sexual activity, yet, a child, aged under 13 years, could be charged with a sexual offence. In the past, a woman was either the property of her father or guardian, until marriage, at which point she became the ‘property’ of her husband. The loss of ‘virginity’ or ‘chastity’ meant the woman lost ‘value’ and, in the Middle Ages, rape could be punished by death. Rape as a capital offence was a felony for which the death penalty was reinstated by Elizabeth I and remained in place until 1841. Other illicit sexual activity was not seen as a ‘crime’ and so was dealt with by the Church, not the Courts. Ref https://www.oldbaileyonline.org/static/Crimes.jsp#sexualoffences Rape was defined in common law as: “unlawful sexual intercourse with a woman without her consent, by force, fear or fraud”, and was a capital offence (felony). In Rooke and Ward, it is noted that once it ceased to be so, ‘…judges became prepared to widen its scope’. They note that although some judges made clear the use or threat of force was not essential to the offence, others did. A woman might gain a degree of independence if she was widowed. This began to change with the Married Women’s Property Acts, in 1870 and 1882. Ref: http://www.legislation.gov.uk/ukpga/1882/75/pdfs/ukpga_18820075_en.pdf Notwithstanding that a husband was supposed to protect and respect his wife, there was no real protection of a married woman from rape and this situation was supported by Lord Justice Hale in 1736; see Box 4. Box 4 'But the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract’. CJ Matthew Hale Ref: Hale M. History of the Pleas of the Crown (1736), vol. 1, ch. 58, p. 629: (as quoted in R v R [1991] 3 WLR 767 http://www.bailii.org/uk/cases/UKHL/1991/12.html) The law finally addressed this in 1991, when the Law Lords dismissed an appeal, (upholding the view of the original trial judge, Owen, J and the Court of Appeal); in the judgement, delivered by Keith LJ, they commented: ‘…husband and wife are now for all practical purposes equal partners in marriage.’ and ‘... in modern times the supposed marital exemption in rape forms no part of the Law of England’ ‘We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.’ R v R [1991] 3 WLR 767 http://www.bailii.org/uk/cases/UKHL/1991/12.html A similar judgement had been made in Scotland in 1989, where it was held that a man can be prosecuted for raping his wife. The Court did not accept that the wife ‘had surrendered her person’ to her husband, and that, as in other cases the relevant questions was whether she had consented, or not. (Stallard v HM Advocate 1989 SLT 469). https://www.ncbi.nlm.nih.gov/pubmed/12344079 http://www.journalonline.co.uk/Magazine/47-4/1000084.aspx S v HM Adv 1989 SLT 469 (often referred to as Stallard v HM Adv, under which name it is reported at 1989 SCCR 248). Sexual offences, and the legislation covering them, are complex, for a number of reasons; they are influenced by alterations in societal norms and what was once seen as acceptable, is subject to change; e.g. Until 1929, it was possible for children, under the age of 16 years (girls aged 12 years and boys aged 14 years), to be married, provided there was parental consent (and reconfirmed in the Marriage Act, 1949) Ref. http://www.legislation.gov.uk/ukpga/Geo6/2-3/33/contents Until 1991, the law did not recognise that a woman could be raped by her husband. R v R [1991] 3 WLR 767 http://www.bailii.org/uk/cases/UKHL/1991/12.html Until 1994, in the Criminal Justice and Public Order Act, and the inclusion of penile penetration of the anus, the law did not recognise that a man could be raped, as a woman could. Ref http://www.legislation.gov.uk/ukpga/1994/33/section/142 Furthermore, definitions must be included for clarity; for example, although previously clarified in England and other Commonwealth jurisdictions, whose law was developed from that in the UK, penetration is accepted as ‘between the labia’. Thus, the law defines a ‘legal’ vagina which is not the same as the ‘anatomical’ vagina about which a doctor or nurse might opine or describe. The legal definition of penetration is ‘between the labia’ and is regarded as a continuing act from entry to withdrawal. This was reconfirmed in the 2003 Sexual Offences Act, (part 1 general interpretation see http://www.legislation.gov.uk/ukpga/2003/42/section/79), which includes: Penetration is a continuing act from entry to withdrawal Touching …includes touching amounting to penetration Vagina includes vulva Rape was originally a ‘common law’ offence: ‘Unlawful carnal knowledge of a woman, without her consent by force, fear or fraud’. It became a ‘statutory’ offence in 1957. (Sexual Offences Act 1956). In 1976 it was defined by statute in the Sexual Offences Act, 1976. Not all legislation which addresses sexual offences comes within a Sexual Offences Act. In summary, the first 34 sections covered the offences; section 1 ‘It is a felony for a man to rape a woman’ other sections included the following offences: procurement of a woman (in any part of the world) via threats, false pretences or false representation, or through the use of a drug to ‘stupefy or overpower her’ intercourse with a girl under the age of 16 years intercourse with ‘defectives’ (classified as imbeciles or idiots) incest prohibiting both a man having sexual intercourse with a woman he knows is his granddaughter, daughter, mother or sister (including half-sister) and similar offences for a woman if she was over 16 years, with her male relatives 'unnatural offences’: buggery with another person or an animal and indecency between men Indecent assaults- abduction, prostitution and procuring of women some sections required corroborative evidence: ‘A person shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused.’ http://www.legislation.gov.uk/ukpga/1956/69/pdfs/ukpga_1956006 9_en.pdf In England and Wales, following the Wolfenden report, the Sexual Offences Act, 1967, confirmed that a consensual homosexual act between two men, aged at least 21 years, conducted in private, was no longer an offence. http://www.legislation.gov.uk/ukpga/1956/69/pdfs/ukpga_1956006 9_en.pdf The law in other parts of the UK changed later: The Homosexual Offences (Northern Ireland) Order 1982 The Criminal Justice (Scotland) Act 1980 In the recent past, all parts of the UK have introduced legislation to pardon/remove convictions for homosexuality, including posthumous actions, for those who have died. Same sex activity between women had never been criminalised. Clearly, a requirement for corroboration evidence, presented a significant difficulty in prosecuting sexual offences, as most occur in private, where only those involved know what happened. Corroboration was a requirement in common law, where an item of evidence was required to be supported or confirmed by another. For example, in relation to a sexual offence, the judge was required to warn the jury of the danger of accepting the complainant’s evidence of a sexual offence, with no corroboration. For further information see Rooke and Ward 19/106. The requirement for corroboration no longer exists in England and Northern Ireland, as it was abolished: in England via the Criminal Justice and Public Order Act, 1994 in Northern Ireland via the Criminal Justice (Northern Ireland) Order 1996 In Scotland, the requirement for corroboration still exists. See the Scottish Government’s Investigation and prosecution of sexual crimes: in which Lord Carloway’s comment on corroboration was cited: “There must first be at least one source of evidence (i.e. the testimony of one witness) that points to the guilt of the accused as the perpetrator of the crime. That evidence may be direct or circumstantial. Secondly, each “essential” or “crucial” fact, requiring to be proved, must be corroborated by other direct or circumstantial evidence (i.e. the testimony of at least one other witness)." https://beta.gov.scot/publications/thematic-review-investigationprosecution-sexual-crimes/pages/18/ The removal of corroboration requirement was proposed in the Criminal Justice (Scotland) Bill, 2013, however, the recommendation for its removal was not included when the Act was passed, in 2016. In Northern Ireland, the Criminal Law Act (Northern Ireland), 1967, (see: http://www.legislation.gov.uk/apni/1967/18/contents), contains in section 5, a positive obligation, in terms of a mandatory requirement, on those who know or believe that an offence has been committed and has information which assists in ‘…the apprehension prosecution or conviction of any person for that offence;…’ to report that, and he commits an offence if he fails to do so, in a timely way, unless he has a reasonable excuse not to do so. However, Article 79 of the Sexual Offences (Northern Ireland) Order, 2008, (see: https://www.legislation.gov.uk/nisi/2008/1769/contents), contains an amendment to section 5 of the Criminal Law Act, in relation to offences covered in Article 20. See also information from the BMA: https://www.bma.org.uk/advice/employment/ethics/children-and-youngpeople/sexual-offences-in-northern-ireland The age of consent for sexual activity (whether between individuals of the opposite or same sex) is 16 years. Notwithstanding this, the law recognises that some young people below the age of 16 years may engage in sexual activity and that it would not always be in the public interest to prosecute the parties (since if the activity was ‘consensual’, both would bear a responsibility). (See also the paragraph above on mandatory reporting in Northern Ireland). However, children below the age of 13 years are deemed unable to consent to any sexual activity, so lack of consent is not mentioned in these offences because it is an irrelevant factor, due to the age of the complainant or complainer. https://www.fpa.org.uk/factsheets/law-on-sex https://www.fpa.org.uk/sites/default/files/northern-ireland-sex-and-thelaw.pdf England and Wales: Sexual Offences Act 2003 https://www.legislation.gov.uk/ukpga/2003/42/contents Northern Ireland: The Sexual Offences Order (Northern Ireland) 2008 https://www.legislation.gov.uk/nisi/2008/1769/contents Scotland: Sexual Offences Act (Scotland) 2009 https://www.legislation.gov.uk/asp/2009/9/contents Jurisdiction Legislation Layout/Format England and Wales Part 1 Sexual Offences Sexual Offences Act 2003 Subdivided into sections: s1 Rape s2 Assault by penetration s3 Sexual Assault s4 Causing sexual activity without consent s5-8 Rape and other offences against a child under 13 s9-15A Child sex offences s16-24 Abuse of a position of trust s25-29 Familial child sex offences s30-33 Offences against persons with a mental disorder impeding choice s34-37 Inducements etc. to persons with a mental disorder s38-44 Care workers for persons with a mental disorder s45-46 Indecent photographs of children s47-51 Sexual exploitation of children s51A-56 Prostitution (and amendments) s57-60C Trafficking s61-63 Preparatory offences s64-65 Sex with an adult relative s66-71 Other offences s72 Offences outside the UK s73-79 Supplementary and general Part 2 Notification and Orders Part 2A Closure orders Part 3 General Schedule 1-7 Northern Ireland The Sexual Offences Part 1 Introductory Order (Northern Articles 1-4 includes interpretation, Ireland) 2008 consent and sexual Part 2 Non-consensual sexual offences Article 5 Rape Article 6 Assault by penetration Article 7 Sexual assault Articles 8-11 Causing sexual activity without consent Part 3 Offences against Children Articles 12-15: Rape and other offences against a child under 13 Articles 16-22A: Sexual offences against a child under 16 Articles 23-31: Offences against children under 18; abuse of a position of trust Articles 32-36 Familial sex offences against children under 18 Articles 37-41: Abuse of children under 18 through prostitution or pornography Article 42: Indecent photographs of children under 18 Part 4 Offences against a person with a mental disorder Articles 43-46: Offences against persons with a mental disorder impeding choice Articles 47-50: Inducements etc to persons with a mental disorder: Articles 51-57: Care workers for persons with a mental disorder Part 5 Prostitution and paying for sexual services of a person Articles 58-64A Part 6 Miscellaneous sexual offence Articles 65-75 including Articles 65-67: preparatory offences Articles 68 -69: sex with an adult relative Articles 70-75: including voyeurism, sex with an animal or a corpse, or in a public lavatory Part 7 Supplementary and general Articles 76-82, including Article 76 Offences outside the UK Article 77 exceptions Schedules 1-3 Scotland Sexual Offences Act (Scotland) 2009 Part 1 Rape etc. s1 Rape s2 Sexual assault by penetration s3-11: Sexual assault and other sexual offences, including sexual assault, sexual coercion, voyeurism Part 2 Consent and reasonable belief of consent s12-16: consent including meaning, consent when asleep or unconscious, and its withdrawal Part 3 Mentally disordered persons s17: Capacity to consent Part 4 Children s18-27 Young children (under 13) including s27 that a belief that a child was 13 is not a defence s28-41: Older children (under 16), including a belief that a child was 16 may be a defence Part 5 Abuse of a Position of Trust s42-45: Children who are under the age of 18 and the person in a position of trust is over 18 s46-47: Mentally disordered persons Part 6 Penalties Part 7 Miscellaneous and general; including: s55: offences committed outside the UK Schedules 1-6 Sexual Offences Act 2003: England and Wales There was a major overhaul of sexual offences legislation, in part, as a result of the sexual offences review, commissioned by the Home Secretary in 1999. The review reported in 2000. http://webarchive.nationalarchives.gov.uk/+/http:/www.homeoffice. gov.uk/documents/vol1main.pdf?view=Binary The Act was passed in 2003, and came into force on May 1st 2004, so has been in place for just over 17 years. In broad terms, one might regard it as 'codified'; it is divided into two sections, the first dealing with offences and the second with the protection of individuals and the management of offenders. The act: brought most sexual offences under one act classified non-consensual penile penetration of the mouth as rape effectively acknowledged that some types of ‘indecent assault’ were particularly serious’ but were not rape, as they did not involve penile penetration, so introduced the offence of assault by penetration of the vagina or anus (not the mouth) other types of indecent assault were classified as ‘sexual assault’ addressed the vulnerability of specific groups, e.g. children at different ages, (under 13, under 16 and under 18 years), specifically abuse by those in a position of trust and those with a ‘mental disorder’ and by carers addressed familial offences, trafficking and exploitation addressed situations where individuals who committed offences against children abroad, could be prosecuted in the UK addressed issues and the meaning of ‘consent’ and ‘sexual’ and ‘penetration’ The Sexual Offences Order (Northern Ireland) 2008 The legislation addressed sexual offences in a similar way as the legislation in England and Wales; it came into force in February 2009. The Sexual Offences Act (Scotland) 2009 This came into force in December 2010 and followed recommendations from the Scottish Law Commission’s Report on Rape and other Sexual Offences in 2007. https://www.scotlawcom.gov.uk/files/4712/7989/6877/rep209.pdf Again, sexual offences are addressed in a similar way to the legislation in England and Wales. Thus, the sexual offences legislation throughout the UK is similar, (but not identical) in its offences, although the way it is set out differs. However, the overriding consequence is that, for the most part, wherever in the UK such offences are committed, the elements which make up the offence are similar, they are viewed with the same degree of seriousness and attract similar penalties on conviction. It is not possible in this module to cover each individual section or article, so the following addresses selected aspects of the legislation. Only a male can commit rape, as the definition involves penile penetration. The essential elements are: 1. The action (actus reus) – penile penetration without consent 2. The mens rea – lack of reasonable belief Section 1 SOA 2003 – RAPE Article 5 Sexual Offences NI Order 2008 Actus reus A person A, who must be male Penetrates with his penis The vagina/anus/mouth of another person B B does not consent Mens rea A intends to penetrate A does not reasonably believe that B consents The meaning of consent is essential to the legislation because the complainant’s lack of consent is an element of the actus reus and the defendant’s belief about the complainant’s consent is an element of the mens rea. Consent can include a range of states of mind from positive desire to reluctant acquiescence. Submission is not the same thing as consent – Olugboja [1982]. It is always a jury decision. The updated legislation in all parts of the UK has attempted to make consent clearer and avoid ‘loopholes’, where a justification might be ‘I didn't know her/his age; I thoughts she/he was 17.’ If the defendant states the complainant consented, the Court will look at what steps were taken by A to be sure that B consented. Part and section or article England and Wales Part 1 s74 For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice. and s75-77 Northern Ireland Part 1 Article 3 For the purposes of this Order, a person consents if he agrees by choice, and has the freedom and capacity to make that choice. and articles 9-11 Scotland Part 2 s12 and s13-15 In Parts 1 and 3, “consent” means free agreement (and related expressions are to be construed accordingly). The sections and articles about consent highlight the importance of a voluntary and genuine, freely given and active consent by each individual, not an assumption made by one person, of the other. Consent is a positive state of mind. Absence of resistance or opposition does not equate to consent. There are a number of video presentations which attempt to explain this e.g. https://www.youtube.com/watch?v=pZwvrxVavnQ Should the accused person state he had a ‘reasonable belief’ of consent, this is clarified in all UK legislation, and, moreover, puts a responsibility on the accused person to demonstrates how/why he held this belief (a reverse burden). England and Wales and Northern Ireland: ‘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.’ Scotland: ‘In determining, for the purposes of Part 1, whether a person’s belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether was consent, or as the case may be knowledge; and if so, to what those steps were.’ There is much discussion about when capacity to consent may be lost, e.g. through intoxication. This is individual to the circumstances of each case and has been addressed by a number of cases: For example, in the case of Bree, ([2007] 2 All ER 676), an appeal against conviction was successful; HHJ Igor Judge said: “If through drink (or for any other reason), the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting.... However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape...as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious.” In an earlier case, in 2005, R v Dougal, the prosecution Counsel stopped the trial when the complainant stated in cross-examination she could not remember whether she consented or not. https://www.infotextmanuscripts.org/falserape/false-rape-431.pdf Of interest, the defendant was employed as a security guard at the function in the University at which the complainant was present; she was very intoxicated and he was to escort her back to her room. Thus, it could be argued he was in a position of trust, and/or had a duty of care towards her. This is sometimes described as ‘drunken consent is still consent’; see: Wallerstein S. A drunken consent is still consent’—or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree. The Journal of Criminal Law (2009) 73; 318–44. https://learning.ulster.ac.uk/bbcswebdav/courses/tsa_1556806636/Module%2 05/A_drunken_consent_is_still_consent-or_Is.pdf Goodall E. Intoxication and Capacity to Consent. The Call for Legislation. January 2016 http://doughty-street-chambers.newsweaver.com/Crime/12e2jzuus3l? a=1&p=784042&t=174048 Consent also covers circumstances when: A misled B as to the circumstances or the nature of the act; B consented on the basis of something e.g. consent to sexual intercourse may be given on the basis that a condom will be used. If a condom is not used (or removed without the other’s knowledge or consent, termed ‘stealthing’), then that consent becomes invalid. (See R (F) v DPP [2013]) A impersonated another e.g. a regular partner In R v B [2007]: B consented to have sexual intercourse with A, but A did not disclose he was HIVpositive. The Court of Appeal held that the act of sexual intercourse remained a consensual act. His failure to disclose would have been relevant had he been charged with an offence contrary to s20 Offences Against the Person Act 1861. Whether a belief is reasonable depends on all the circumstances, including any steps A has taken to establish whether B consents In England, Wales and Northern Ireland: '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.’ In Scotland: ‘Whether a person's belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were.’ The legislation includes ‘intent’, but being drunk is not a defence (see later). The legislation addresses that: a penis or a vagina may be surgically constructed that vagina includes the vulva The penalty, on conviction, may be life imprisonment. Assault by penetration (in Scotland: Sexual assault by penetration) Throughout the UK this is defined as Section 2 Sexual Offences Act 2003 – Assault by penetration Article 6 Sexual Offences NI Order 2008 Section 1 Sexual Offences Scotland Act 2009 Actus reus A penetrates Mens rea A intends to penetrate The vagina or anus of B A does not reasonably believe With a part of his/her body or anything else that B consents Sexually B does not consent As with rape, the same issues regarding reasonable belief apply. And the penalty, on conviction, may be life imprisonment. The wording of the legislation in England and Wales: Section 3 SOA 2003 – Sexual Assault Article 7 Sexual Offences NI Order 2008 Section 2 Sexual Offences Scotland Act 2009 Actus reus Mens rea A touches B A intends to touch Sexually A does not reasonably believe B does not consent that B consents In Scotland, the legislation is more detailed, where a list of activities includes: Sexual assault (Scotland) penetrates sexually by any means and to any extent, intending to do so, or reckless as to whether there is penetration, the vagina, anus or mouth of B intentionally or recklessly touches B sexually engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement whether or not through clothing) with B intentionally or recklessly ejaculates semen onto B intentionally or recklessly emits urine or saliva onto B, sexually It may: not involve any direct physical contact between the assailant and complainant/complainer e.g. the assailant may cause/tell the complainant/complainer to masturbate may be the section or article under which a woman may be charged in relation to her forcing a man to penetrate her Part and section or article England and Wales Part 1 s4 Causing a person to engage in sexual activity without consent (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. Northern Ireland Part 2 Article 8 Causing a person to engage in sexual activity without consent 8.—(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. Scotland Part 1 Sexual coercion s4 If a person (“A”)— (a)without another person (“B”) consenting to participate in a sexual activity, and (b)without any reasonable belief that B consents to participating in that activity, intentionally causes B to participate in that activity, then A commits an offence, to be known as the offence of sexual coercion. S74 Sexual Offences Act 2003 (England & Wales), defines this as: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice” S12 Sexual Offences Act 2009 (Scotland) defines consent as: “free agreement” Children are vulnerable for numerous reasons, not just by virtue of their age; offences may relate to children under the age of 18, under the age of 16 and under the age of 13. Consent is not a relevant consideration in offences relating to children under the age of 13, as, in law, they are deemed unable to consent. Part and section or article England and Wales Part 1 s5-8 s9-15A Rape and other offences against children under 13 Child sex offences (child under 16 and offender over 18) N.B. s13 addresses offending by those under 18 years Northern Ireland Part 3 Scotland Part 4 Article 12-15 s18-27 Younger children Rape and other offences against children under 13 N.B s37 addresses offending by those under the age of 18 s28-39 Older children In R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division)), Baroness Hale stated: ‘It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13 it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence)...When the child is under 13, … he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.’ https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd080618/rvg-2.htm Whilst it is recognised that young people, (who are also children), may legally consent to sex at the age 16, they may be vulnerable to adults who hold a position of trust or authority, due to their role in relation to that young person, who is under the age of 18 years. Such circumstances may cover where the young person is in hospital, in an educational establishment, under the care of the local authority. This legislation identified a number of roles which fulfil ‘a position of trust’; however there are other roles which are not included. There has been a campaign to change the law and prevent a potential risk to children and young people, from adults working in non-statutory/voluntary roles, e.g. a coach. As a result, the Home Office have published a proposal to extend the position of trust offences, in the SOA, 2003, with a new section 22a, via the Police, Crime and Courts Sentencing Bill, 2021. See: https://www.gov.uk/government/publications/police-crime-sentencing-andcourts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021positions-of-trust-factsheet As noted, children are vulnerable and may be particularly vulnerable when in contact with others whether face to face or via electronic communications, in the form of ‘grooming’. Relevant legislation includes: England and Wales: Sexual Offences Act 2003 Antisocial Behaviour, Crime and Policing Act 2014 (http://www.legislation.gov.uk/ukpga/2014/12/contents) Northern Ireland: Sexual Offences (Northern Ireland) Order 2008 The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (http://www.legislation.gov.uk/nia/2015/2/contents) Protection of Children (Northern Ireland) Order 1978 (https://www.legislation.gov.uk/nisi/1978/1047/contents) Sexual Offences Act 2003 Scotland: Sexual Offences Act (Scotland) Act 2009 Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (https://www.legislation.gov.uk/asp/2005/9/contents) Civic Government (Scotland) Act 1982 (s52: https://www.legislation.gov.uk/ukpga/1982/45/section/52) Criminal Justice (Scotland) Act 2003 (s22: https://www.legislation.gov.uk/asp/2003/7/section/22) Human Trafficking and Exploitation (Scotland) Act 2015 (http://www.legislation.gov.uk/asp/2015/12/contents) Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (http://www.legislation.gov.uk/asp/2016/22/contents) In all the legislation, sexual activity between close relatives is an offence, and this includes relationships which are not biological, but arise through fostering, adoption or through step-parent/step-child. The relevant legislation is: England and Wales: Sexual Offences Act 2003 Northern Ireland: The Sexual Offences (Northern Ireland) Order 2008 Scotland: Criminal Law (Consolidation) (Scotland) Act 1995 (https://www.legislation.gov.uk/ukpga/1995/39/contents) The legislation addresses (as did earlier legislation to a certain extent), groups within society who may be particularly vulnerable because their capacity is impaired: In England and Wales and Northern Ireland: ‘a person with a mental disorder impeding choice’ In Scotland; ‘mentally disordered persons’ Furthermore, there is a recognition that they may be at risk of a sexual offence through inducement, or by their carers. Section or article England and Wales Part 1 s61 Administering a substance with intent (1) A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B) (a) knowing that B does not consent, and (b) with the intention of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B. Northern Ireland Part 6 Article 65 Administering a substance with intent A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B)— (a) knowing that B does not consent, and (b) with the intention of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B. Scotland Part 1 s11 Administering a substance for sexual purposes (1) If a person (“A”) intentionally administers a substance to, or causes a substance to be taken by, another person (“B”)— (a) without B knowing, and (b) without any reasonable belief that B knows, and does so for the purpose of stupefying or overpowering B, so as to enable any person to engage in a sexual activity which involves B, then A commits an offence, to be known as the offence of administering a substance for sexual purposes. However, as rape is an indicatable offence, only, s22 of the Offences Against the Person Act, 1861, covers the administration of any ‘stupefying’ drug: “Whoever shall unlawfully apply or administer to or cause to be taken by, or attempt to apply or administer to or attempt to cause to be administered to or taken by, any person, any chloroform, laudanum, or other stupefying or overpowering drug, matter, or thing, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing, any indictable offence, shall be guilty of felony” http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/22 Section 21 of the Offences Against the Person Act, (OPA), addresses: "Whosoever shall, by any means whatsoever, attempt to choke, suffocate, or strangle any other person, or shall by any means calculated to choke, suffocate, or strangle, attempt to render any other person insensible, unconscious, or incapable of resistance, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing, any indictable offence" http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/21 In recent years, the importance of non-fatal strangulation, (NFS) has been identified, particularly in the context of domestic abuse and sexual violence, yet prosecution for it depended on it being a ‘preparatory’ act. The Domestic Abuse Act, 2021, has addressed this in section 70, with an amendment to the Serious Crime Act, 2015. See: https://www.legislation.gov.uk/ukpga/2021/17/section/70/enacted. However, this section has not yet been implemented; further information can be found here: https://www.gov.uk/government/publications/domesticabuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet As noted earlier, although the age of consent to sexual intercourse is 16 years, it is understood that young people below that age may engage in ‘consensual’ activity. In such circumstances, it is recognised that society would want young people to be able to seek advice e.g. for healthcare or contraception, and that those seeking and providing such advice should not be constrained about breaking the law. Section or article England and Wales Part 1 s73 A person is not guilty of aiding, abetting or counselling the commission against a child of an offence to which this section applies if he acts for the purpose of— (a)protecting the child from sexually transmitted infection, (b)protecting the physical safety of the child, (c)preventing the child from becoming pregnant, or (d)promoting the child’s emotional well-being by the giving of advice, Northern Ireland Part 7 Scotland Part 7 Article 77 S51 The wording is as above, but for the use of the word ‘article’ instead of ‘section’. A person (“X”) is not guilty of inciting, or being involved art and part in, an offence under Part 4 or 5 if, as regards another person (“Y”), X acts— (a)for the purpose of— (i)protecting Y from sexually transmitted infection, (ii)protecting the physical safety of Y, (iii)preventing Y from becoming pregnant, or (iv)promoting Y's emotional wellbeing by the giving of advice, and The sexual offences legislation in England and Wales (Part 1 s51A-56) and Northern Ireland (Part 5, articles 58-64A) addresses prostitution. In Scotland, there are several pieces of legislation, including: Prostitution (Public Places) (Scotland) Act 2007; the Civic Government (Scotland) Act and the Criminal Law (Consolidation) (Scotland) Act 1995. Further information can be found here: https://www.gov.scot/Topics/archive/law-order/Response Trafficking may occur within a country of the UK, across the border into other countries of the UK or across international boundaries. Trafficking is addressed: in England and Wales by the Sexual Offences Act 2003, Part1 s57-60c and The Modern Slavery Act, 2015 http://www.legislation.gov.uk/ukpga/2015/30/contents in Northern Ireland by the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (http://www.legislation.gov.uk/nia/2015/2/contents) in Scotland by the Human Trafficking and Exploitation (Scotland) Act 2015 (http://www.legislation.gov.uk/asp/2015/12/contents) Many sexual offences carry imprisonment as the penalty, but the sentence depends on a number of factors, and can include community-based (noncustodial) sentences. All jurisdictions have sentencing guidance or guidelines: The Sentencing Council, in England and Wales; see: https://www.sentencingcouncil.org.uk/about-sentencing/about-guidelines/ Judiciary NI in Northern Ireland; see: https://judiciaryni.uk/ The Scottish Sentencing Council; see: https://www.scottishsentencingcouncil.org.uk/sentencing-guidelines/ Depending on the offence and the sentence, the offender may have to register as a sex offender and comply with a number of requirements. The period of time during which he/she has to do this depends on the nature of the conviction and the sentence. The notification requirements include: name(s), date of birth, address(es) at which he/she resides. Similarly, for some offenders, a conviction may also have an impact on: their professional role and ability to work, e.g. as a healthcare professional, as a teacher their ability to travel, as some offences preclude entry to other countries Furthermore, in acknowledging that an individual may have a propensity to commit like offences, there are mechanisms for managing and preventing the risk including: Sexual harm prevention orders Sexual offences prevention orders Foreign travel orders Sexual risk orders Risk of sexual harm orders There are further proposals which aim to strengthen the management of sex offenders included in the Police, Crime and Courts Sentencing Bill, 2021. See: https://www.gov.uk/government/publications/police-crime-sentencing-andcourts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021sex-offender-management-factsheet England and Wales UK Government, Ministry of Justice: End-to-End Rape Review, June 2021, see: https://www.gov.uk/government/publications/end-to-end-rape-reviewreport-on-findings-and-actions Office for National Statistics: Crime and Justice https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjust ice Crown Prosecution Service (CPS) https://www.cps.gov.uk/crime-info/sexual-offences Northern Ireland Public Prosecution Service, Northern Ireland www.ppsni.gov.uk https://www.ppsni.gov.uk/sexual-offences Scotland The Crown Office and Procurator Fiscal Service https://www.copfs.gov.uk https://www.gov.scot/publications/follow-up-review-investigationprosecution-sexual-crime Publications Rook P, Ward R. (2016) Sexual Offences Law and Practice. 5th edition. London: Sweet and Maxwell. Lees P, and Laws E. (2014) The Sexual Offences Reference: A Practitioner’s Guide to Indictment and Sentencing. 2nd edition. Oxford: Oxford University Press. Crown Prosecution Service (CPS) Sentencing remarks of HHJ Peter Rook Q.C. at the Central Criminal Court, June 27th 2013. https://www.judiciary.uk/wpcontent/uploads/JCO/Documents/Judgments/sentencing-remarks-rv-dogar-others.pdf Rumney PNS, Fenton RA. Intoxicated Consent in Rape: Bree and Juror Decision Making. The Modern Law Review (2008) 71(2); 271302 http://www.academia.edu/4086224/Intoxicated_Consent_in_Rape_B ree_and_Juror_Decision-Making The Northumbria Court Observers Panel, (2017). Report on 30 rape trials 2015-2016. Seeing is believing. https://archive.northumbria-pcc.gov.uk/volunteers/courtobservers/seeing-is-believing-2 Justice. Prosecuting Sexual Offences, (2019). https://files.justice.org.uk/wpcontent/uploads/2019/06/06170149/Prosecuting-Sexual-OffencesReport.pdf