Sexual Offences Lecture

Introduction

It almost goes without saying that there are a very large number of sexual offences that could be considered by this chapter. It is not possible, nor necessary, since some of the less common offences are unlikely to be given a great deal of consideration in an undergraduate course, to deal with all of these offences in detail. Furthermore, since the principal sexual offences in England and Wales are now contained within the provisions of the Sexual Offences Act 2003 (SOA 2003), many of the key terms are interchangeable between the various offences. The principal offences in Part 1 took effect on 1 May 2004. Earlier conduct is governed by the law then in force. The result is that once certain offences have been considered, a brief outline of others will provide sufficient understanding.

Rape

The definition of rape is set out in section 1 SOA 2003, which provides:

A person (A) commits an offence if -

1. He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents
   • 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.
   • Sections 75 and 76 apply to an offence under this section.

Sections 75 and 76 address certain presumptions as to consent and will be considered below.

The offence can be broken down into four elements:

• Penetration with the defendant’s penis of the complainant’s vagina, anus or mouth;
• The complainant did not consent;
• The penetration was intentional;
• The defendant did not reasonably believe that the complainant consented.

The first two elements contain the actus reus of the offence, the second two the mens rea.

Actus Reus

Penetration

The first part of the actus reus of rape makes it clear that it is an offence that can only be committed by a person using their own penis. However, the fact that the penetration of the anus or mouth can constitute rape makes it clear that the offence can also be committed against a man. Section 79(3) SOA 2003 provides that parts of the body that are surgically constructed fall within the remit of the Act. This provision means that a person with a surgically constructed vagina can be raped vaginally, and that a person with a surgically constructed penis is able to commit the offence. The limitation on penetration with a penis means that a person without a penis, even if they force another person to have sexual intercourse, can never be guilty of rape as a principal offender. They will be potentially liable for other offences considered below, and may be guilty as an accessory if they intentionally assist or encourage a rape.

The offence only requires penetration of one of the prescribed orifices; it is not necessary for full sexual intercourse to take place. Furthermore, any degree of penetration, however slight, will be sufficient for the requirements of the offence. For this purpose the vagina includes the vulva (s 79(9)).

The term penetration does not simply apply to the initial penetration, but constitutes a continuing act from entry to withdrawal (SOA 2003, s 79(2)). Therefore, if consent to the penetration ceases, the defendant must withdraw (Kaitamaki v The Queen [1985] AC 147). The important point in this respect is that in such a circumstance, the initial consent to the initial penetration becomes irrelevant and a defendant is unable to claim, if they become aware that consent has ceased, that there was continuing consent (R v Cooper; R v Schaub [1994] Crim LR 531).

Absence of Consent

Consent is a complex issue in relation to rape. This is for two reasons. Firstly, consent forms part of the actus reus and the mens rea of the offence, and therefore it is important to distinguish between the two elements. Secondly, the notion of what constitutes consent is largely a jury question, but is one upon which certain guidance must often be given by the trial judge. Therefore, whilst the issue is ultimately one of fact, a certainty of approach is often necessary.

Section 74 SOA 2003 provides that:

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

The definition aims to focus on a complainant’s ability to make a choice. It does not contain any need for a complainant to demonstrate their consent or lack of it. In other words, a complainant may or may not consent without any extrinsic demonstration of their frame of mind. The result is that a complainant who freezes and is unable to communicate their consent, or lack thereof, may not be consenting.

The definition has two distinct considerations. The first of these requires a complainant to be able to freely make the choice as to whether they consent to the penetration. In order to be able to do this, any pressure must leave the complainant free to choose whether to agree. Whilst this point appears to be a question of law, the level of undue pressure that is sufficient to vitiate consent is a matter for the jury.

This judgment clearly demonstrates that undue pressure may take any form. The fact that the complainant believed that she had little choice, because of her circumstances, to submit to the sexual intercourse was evidence from which the jury could find that she did not freely agree.

The issue of consent is further complicated by the fact that it can cover a range of reactions ranging from reluctant agreement to an express desire for the penetration to occur. Clearly, the former position may require some guidance to be given to the jury. However, in R v Watson [2015] EWCA Crim 559 it was held that where a complainant submits because they feel that they are unable to resist, the circumstances may be such as to lead to a conclusion that they reluctantly agreed and therefore consented. The question remains whether the complainant in fact chose to agree. As explained in R v Olugboja [1982] QB 320, a distinction must be drawn between mere submission and reluctant agreement.

The second element contained within the definition of consent relates to the complainant’s capacity to give consent. Capacity is not defined by SOA 2003, but it seems that in order to have sufficient capacity to consent a complainant must have sufficient knowledge or understanding to be able to decide whether to agree or not (R v Howard (1965) 50 Cr App R 56).

In R v Cooper [2009] 1 WLR 1786 the House of Lords considered the separate offence under section 30, where a mental disorder impedes choice. Understanding the nature of the act does not by itself establish capacity. An inability to weigh the information, or an irrational fear linked to the disorder, may prevent a person from choosing on a particular occasion or with a particular partner. X City Council v MB, NB, and MAB [2006] EWHC 168 (Fam) concerned capacity in civil proceedings. The criminal question concerns the particular act at the time it took place.

The second situation where capacity may be a specific issue relates to where a complainant is voluntarily intoxicated. In such circumstances, the jury must distinguish capacity from whether the complainant actually agreed (R v Bree [2008] QB 131):

• Intoxication may lower a complainant’s inhibitions, and therefore may make them do something that they would not ordinarily do when not intoxicated. The fact that a complainant agrees to something in this state does not mean that they have not consented. If the complainant retained capacity, it remains necessary to decide whether they actually agreed.
• If a complainant is so intoxicated that they cannot agree or cannot understand the nature of the act or, if they can understand the act, are unable to weigh whether to consent or not, they cannot consent.
• A complainant may be in the state described directly above even if they remain conscious. Being unable to make a decision is distinct from deciding against the act but being unable to communicate that decision. Neither amounts to consent.
• An unconscious complainant cannot make a choice while unconscious, even if the complainant’s body responds to the defendant’s actions.

This judgment is interesting in that it covers many of the issues arising out of consent. It addresses the fact that for the actus reus of rape, it is the complainant’s state of mind that is relevant to consent, not necessarily their actions. It also demonstrates the importance of considering capacity in respect of all the circumstances.

The common law once treated marriage as giving a husband immunity from prosecution for raping his wife. The House of Lords rejected that immunity in R v R [1992] 1 AC 599. In R v C [2004] EWCA Crim 292 the Court of Appeal upheld a conviction for the rape of the defendant’s wife in 1970.

Mens Rea

Intention to Penetrate

This element of the mens rea is ordinarily easily satisfied. For these purposes, all that is required is that the penetration is intentional (compare R v Heard [2008] QB 43, on intentional touching for sexual assault). Whether penetration was intentional is a question of fact. In R v K [2009] 1 Cr App R 331 the prosecution could allege penetration of the vagina or anus where the evidence did not establish which. That is different from accidental penetration. In R v Gabbai [2019] EWCA Crim 2287, the jury had to be sure that the alleged anal penetration was intentional.

No Reasonable Belief in Consent

The second mens rea element returns to the notion of consent in that the prosecution must demonstrate that the defendant did not reasonably believe that the complainant was consenting at the time of the penetration. This is not an entirely objective test, in that section 1(2) SOA 2003 provides that regard should be had to all of the circumstances including any steps that the defendant has taken to ascertain whether the complainant has consented. In this respect, certain characteristics of the defendant may be relevant to the consideration that the jury makes.

In R v B [2013] EWCA Crim 3 the Court of Appeal left open whether a defendant’s ability to recognise subtle social signals might be relevant to a reasonable belief in consent. A delusion caused by mental illness could explain why the defendant held a belief, but could not make an irrational belief reasonable. Prior to the coming into force of SOA 2003, belief in consent was purely subjective (DPP v Morgan [1976] AC 182). The prosecution must now disprove a belief that was both genuinely held and reasonable.

Self-induced intoxication cannot give rise to a reasonable belief in consent. Therefore, whilst subjectively, it is recognised that a drunk person may make a mistake as to the existence of consent, a mistake attributable to voluntary intoxication cannot be treated as reasonable on that account (R v Grewal [2010] EWCA Crim 2448).

Section 1(2) SOA 2003 does not require a defendant to take positive steps in an attempt to ascertain whether a complainant is, in fact, consenting. The jury must take account of any steps the defendant did take. A long-standing relationship does not of itself justify assuming consent on a particular occasion.

Presumptions as to Consent

SOA 2003 creates two distinct types of presumptions as to consent. They apply to the offences in sections 1 to 4. The evidential presumptions in section 75 concern both consent and reasonable belief in consent. Under section 76, where the relevant act and the specified deception are proved, it is conclusively presumed that the complainant did not consent and that the defendant did not believe that they consented.

Evidential Presumptions

For the evidential presumptions to apply, the prosecution must prove the relevant act, one of the circumstances in section 75(2), and the defendant’s knowledge of that circumstance. The questions of actual consent and reasonable belief are separate. A bare assertion of belief without an evidential basis need not raise an issue (R v Ciccarelli [2011] EWCA Crim 2665).

The application of the section is fourfold:

• If the prosecution proves all three conditions, the complainant is taken not to have consented unless sufficient evidence raises an issue of consent.
• Likewise, the defendant is taken not to have reasonably believed in consent unless sufficient evidence raises that issue. The evidence may come from either side.
• The judge decides whether there is sufficient evidence to leave each issue to the jury.
• On an issue so raised, the jury applies the ordinary test. The burden remains on the prosecution to make the jury sure.

There are six evidential presumptions.

1. Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him. It is important to note that the use or threat of violence need not come from the defendant. It is violence directed at the complainant, whatever its origin, that is relevant.
2. Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person. For these first two circumstances, if the act forms part of a continuous series of sexual activities, the time immediately before it began is the time immediately before the first activity began (s 75(3)).
3. The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act.
4. The complainant was asleep or otherwise unconscious at the time of the relevant act. This section reflects the view set out above that an unconscious person cannot then make a fresh choice. Evidence of prior agreement to the particular act may raise an issue for the jury (R v White [2010] EWCA Crim 1929).
5. Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented.
6. Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. The important point in the context of this presumption is that the complainant’s condition at the time that the relevant act occurred is irrelevant to the operation of the presumption. The statutory conditions, including lack of consent to taking the substance and the defendant’s knowledge of the circumstances, must still be proved.

Evidence that the complainant had agreed to a particular activity in advance, for example as part of a fantasy, may raise an issue of consent or reasonable belief. A wish to enact a fantasy does not establish agreement to every act done in its course.

Conclusive Presumptions

There are two conclusive presumptions set out within section 76(2) SOA 2003. The first of these provides that a complainant will not be considered to have consented if the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (s 76(2)(a)).

This presumption will arise where a defendant has, for example, informed a complainant that they are going to perform a medical procedure on them where in reality the defendant simply intends to have sexual intercourse, with the result that the complainant agrees to what they believe is medical treatment (R v Flattery (1877) 2 QBD 410).

Deception may also affect freedom of choice under section 74 without engaging section 76. In R v McNally [2013] EWCA Crim 1051, the Court of Appeal held that a deception as to gender could be capable of vitiating consent, under section 74 because it affected the complainant’s choice about the sexual activity itself. However, the courts have drawn a distinction between deceptions as to the nature or purpose of the act and deceptions relating to broader circumstances. In R v Lawrance [2020] EWCA Crim 971, the Court of Appeal held that a lie about fertility (the defendant falsely told the complainant he had had a vasectomy) did not negate consent under section 74 because it concerned the consequences of intercourse rather than its performance. The complainant understood she was consenting to sexual intercourse; the deception related to a collateral matter. This distinction between deceptions going to the nature or purpose of the act and those relating to the surrounding circumstances remains a developing and contested area of law.

The second conclusive presumption arises where the defendant intentionally induces the complainant to consent to the relevant act by impersonating a person known personally to the complainant (s 76(2)(b)). The limitation in this section is that the person who is being impersonated must be personally known to the complainant. The section would be triggered by somebody impersonating the complainant’s husband (compare the impersonation of a boyfriend under the former law in R v Elbekkay [1995] Crim LR 163), for example, but would not be if the defendant impersonated a film star whom the complainant admired, but did not know personally.

Non-disclosure of Sexually Transmitted Diseases and Conditions Affecting Sexual Intercourse

In R v B [2007] 1 WLR 1567, it was made clear that non-disclosure of HIV status did not of itself negate consent to intercourse for the purposes of rape. Consent to intercourse is distinct from consent to the risk of infection. In R v Dica [2004] QB 1257 the Court of Appeal held that recklessly transmitting HIV can amount to inflicting grievous bodily harm under section 20 of the Offences Against the Person Act 1861. A complainant who freely and knowingly accepted the risk may have consented to it (R v Konzani [2005] EWCA Crim 706).

The issue of deception in connection with sexual intercourse has been further considered in more recent cases. In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), the Divisional Court held, in extradition proceedings, that deliberate non-use of a condom could vitiate consent where its use was a condition of agreement. This line of reasoning was developed further in R (F) v DPP [2014] QB 581, where the Divisional Court ordered the decision not to prosecute to be reconsidered. A deliberate decision to disregard an agreed condition to withdraw before ejaculation could negate consent. These cases demonstrate that where consent is conditional on a specific aspect of how the sexual act is performed, and the defendant deliberately breaches that condition, consent may be absent under section 74. However, as noted above, the Court of Appeal in Lawrance [2020] emphasised that not every deception about the circumstances of sex will vitiate consent. In R v BVA [2025] EWCA Crim 1359, undisclosed filming was capable of negating consent to sexual touching because making the film was integral to the touching itself.

Complainant’s Mistake

The position in respect of whether a complainant consents with a mistaken belief as to the nature or quality of the act is linked closely to both section 76 and the general ability to make an informed choice. In R v Tabassum [2000] 2 Cr App R 328, for example, the complainants were found not to have consented when a defendant examined their breasts after telling them that he was medically qualified when he was not. Whilst the complainants had agreed to the physical touching (it was held that the same position applies for this offence and rape - it should also be noted that because this was a pre-SOA 2003 judgment, the offence was indecent assault), they had agreed to what they believed was a medical examination, not to sexual touching. It appears that this approach reflects the position in Devonald. Therefore, it is important to look at all aspects of the defendant’s actions and the complainant’s understanding of those actions in order to consider whether consent exists.

Assault by Penetration

Section 2 of SOA 2003 provides:

A person (A) commits an offence if -

1. he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
2. the penetration is sexual,
3. B does not consent to the penetration, and
4. A does not reasonably believe that B consents.

The mens rea of this offence is identical to that discussed above in relation to rape, and will therefore not be considered here. The actus reus differs in two respects. The first difference is easily identified, in that penetration can be with any part of the defendant’s body or anything else. Additionally, penetration of the mouth does not apply to this offence. As with rape, the maximum sentence is life imprisonment.

The second actus reus element requires the penetration to be sexual.

Section 78 SOA 2003 provides:

For the purposes of this Part (except sections 15A, 66B to 66D, 69 and 71) penetration, touching or any other activity is sexual if a reasonable person would consider that -

1. whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
2. because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

The requirements of section 78(a) are reasonably clear, in that where an act is clearly sexual in nature, it does not matter whether the defendant gained any sexual gratification from it. Indeed, even if the defendant’s intentions are entirely non-sexual, if the act itself is clearly sexual, the act will satisfy section 78(a).

The application of section 78(b) is slightly more complex. Where the question as to whether the act is sexual is ambiguous, the jury must consider firstly whether a reasonable person would consider that the nature of the act may make it sexual and, if it does, whether in the particular circumstances of it, it was in fact sexual (R v H [2005] 1 WLR 2005). It is only if both questions are answered in the affirmative that section 78(b) will be satisfied.

In this respect, it seems that H both narrows and widens the scope of a sexual act at the same time. Whilst an act will not be sexual by circumstance if its nature is incapable of being sexual, the scope of acts that may be sexual by nature is a broad one.

Sexual Assault

Section 3 of SOA 2003 provides:

A person (A) commits an offence if -

1. he intentionally touches another person (B),
2. the touching is sexual,
3. B does not consent to the touching, and
4. A does not reasonably believe that B consents.

The only element of this offence which requires consideration is touching. This is because although where touching is given its ordinary meaning in most circumstances, the nature of the offence is such that a victim does not necessarily need to be aware that they are being touched (R v Bounekhla [2006] EWCA Crim 1217). Nor does the victim’s body need to be touched. A defendant who touches clothing the victim is wearing satisfies the touching requirement (R v H [2005] 1 WLR 2005). Section 79(8) includes touching with a part of the body, with anything else, or through anything. The maximum sentence on indictment is ten years.

Causing a Person to Engage in Sexual Activity Without Consent

Section 4 SOA 2003 provides:

A person (A) commits an offence if -

1. he intentionally causes another person (B) to engage in an activity,
2. the activity is sexual,
3. B does not consent to engaging in the activity, and
4. A does not reasonably believe that B consents.

This section addresses circumstances in which a victim is caused to engage without consent in any kind of sexual activity that may not be addressed by the preceding offences. It also has the effect of making a defendant liable if the victim is forced by the defendant to engage in sexual activity with somebody other than the defendant. In such a circumstance, the person committing the sexual act may be liable in addition to the person who causes the victim to engage in it. A husband who forces his wife to have sexual intercourse with another man may be liable under this section. The other man may be liable for rape. Section 4 also covers making the complainant penetrate the defendant. The maximum on indictment is life imprisonment where the activity involves penetration of a kind specified in s 4(4), and ten years otherwise.

Sexual Offences Against Children

Sections 5 to 15A contain a number of offences related to children. It is not possible to address these individually here. The first group relates to sexual activity of the type set out in sections 1 to 4 with a child under the age of 13 (ss 5 – 8). Each of these offences removes any notion of consent from the offence. Therefore, where a defendant intentionally penetrates the vagina, anus or mouth of a child under 13 with his penis, he will be liable for rape of a child under 13 (s 5), regardless of apparent consent or any belief that the child was older (R v G [2008] UKHL 37).

Sections 9 to 12 apply where a person aged 18 or over engages in the specified sexual conduct with or involving a child under 16. If the child is 13 to 15 the prosecution must prove that the defendant did not reasonably believe the child was 16 or over. If the child is under 13, belief about age is immaterial. Section 13 applies the same elements to a defendant under 18. Section 14 covers arranging or facilitating an offence under sections 5 to 13. Section 15 covers an adult meeting or arranging to meet a child after previous contact, or the specified travel to a meeting, intending to commit a relevant offence. The child must be under 16 and the adult must lack a reasonable belief that the child is 16 or over.

It should also be noted that section 15A SOA 2003, inserted by the Serious Crime Act 2015, creates the offence of sexual communication with a child. This makes it an offence for an adult to intentionally communicate with a child under 16, without reasonably believing the child is 16 or over, for the purpose of obtaining sexual gratification, where the communication is sexual or is intended to encourage the child to make a communication that is sexual. The offence covers communications online and offline. Some offences also protect 16- and 17-year-olds. For example, sections 16 to 19 apply to adults in specified positions of trust, which can include regular coaching or instruction in sport or religion (s 22A).

Sexual Offences - Hands on example

This question is designed to test your knowledge and understanding of sexual offences. Whilst this appears to be a very large area and whilst certain elements of it are quite complex, it is important to remember that many of the key elements are relevant to all of the offences. The result is that although there are numerous offences to learn, large parts of each offence are interchangeable.

Facts

1. Peter is extremely angry because he has just discovered that his wife, Julie, has been having an affair with his best friend Brian. In order to try to calm down a little, Peter decides to go to the pub. Whilst at the pub, he drinks 12 pints of strong lager and, as a result, becomes extremely drunk. In his drunken state, Peter comes to the conclusion that he is sure that Julie has made a mistake and that all it will take to win her back is for him to show her how much he loves her. In order to show Julie this Peter decides to go home to make love to her.

When he gets home, his wife is asleep. Peter decides to wake Julie up and tell her how he feels. Julie wakes to see how upset Peter is and decides, because she feels sorry for him, to allow him to make love to her for one last time (she intends to move in with Brian the next morning). Peter undresses, climbs into bed and penetrates Julie’s vagina with his penis. After a few minutes, Julie suddenly decides that what she is doing is wrong and says to Peter ‘Stop this now, I do not want you to carry on, get your penis out of me’.

Discuss Peter’s liability for rape if:

• He immediately withdraws his penis.
• He continues to have sexual intercourse with Julie because he believes that if he continues she will see how much he loves her.

2. The same situation exists as is set out above except that when Peter gets home he undresses and gets into bed with Julie who is dozing. Peter penetrates Julie’s vagina with his penis. When Julie stirs she says ‘What’s going on?’ Peter says, ‘Don’t worry it’s me, Brian. Peter is at the pub and won’t be home for ages.’

Discuss Peter’s liability in this circumstance.

3. Peter and Julie’s son, Christopher, is 17-years-old and has been seeing his girlfriend Amanda for 2 months. Amanda is 16 and in the 6^th form at school. One evening after a date, Amanda invites Christopher to her house because her parents are out. Whilst at Amanda’s house Christopher and she kiss and, because he thinks that Amanda will like it, Christopher pushes his hand between Amanda’s legs and touches her vagina through her jeans. Amanda immediately jumps up and throws Christopher out of the house.

Christopher is arrested the next morning. Consider his liability for sexual assault. How would your answer differ if Amanda had lied about her age and was only 15-years-old?

4. Situation 3 did not occur as described and Amanda was happy for Christopher to touch her as he did, although they did not go further than this. The following week Christopher tells Amanda that he is going away. Whilst he is away, Christopher contacts Amanda and suggests that she do something to remind him of why he likes her so much. He suggests that Amanda carries out a striptease over a webcam, so that he can watch it from his location. Amanda agrees, but what she does not know is that Christopher has invited several of his friends around to watch ‘the show’. Amanda, therefore, does a striptease in front of Christopher and his friends.

Consider Christopher’s liability for any sexual offences.

1. The issue in this context is whether Peter rapes Julie. The actus reus of the offence requires penetration of the vagina with a penis - this is clearly satisfied. There can also be no consent issue at the start because Julie freely chooses to allow Peter to penetrate her. The issue arises when Peter is told to stop. Penetration is an ongoing act and therefore, as soon as the consent is withdrawn, the penetration must end. In the first scenario, this occurs and Peter will not be liable for rape. He does not satisfy the actus reus because he only penetrates with consent. When the consent ends, so does the penetration.

The alternative scenario is more problematic because Peter does not remove his penis when told to stop. This means that he satisfies the actus reus of the offence. There is penetration and Julie does not consent to it. The first mens rea element is satisfied in that the penetration is intentional. The second element falls to whether it was reasonable for Peter to believe that Julie consented. Julie’s words are unambiguous. Even if Peter hopes she will change her mind later, that is no basis for believing she consents now. Additionally, the fact that Peter is very drunk is not relevant to what a reasonable person in his circumstances would believe. It seems, therefore, that Peter will not be found to have a reasonable belief in consent.

2. If Julie was asleep, and Peter knew this when he penetrated her, section 75(2)(d) raises presumptions both of no consent and of no reasonable belief in consent. Nothing in the facts suggests a prior agreement to penetration while asleep. If Julie was merely drowsy, the ordinary test applies. Once she stirs, Peter intentionally impersonates Brian, whom she knows personally. If that impersonation induces her agreement to continued penetration, section 76(2)(b) conclusively presumes that she did not consent and Peter did not believe that she consented. If she never agrees at all, continued intentional penetration without reasonable belief in consent is rape under section 1. 

3. Christopher intentionally touches Amanda through her jeans (s 3). It appears that the touching is clearly sexual and even if it is not, it certainly may be, with the circumstances making it so. The issue once again is one of consent. It seems that Amanda does not consent to the touching, so the issue is whether Christopher’s belief that she did was a reasonable one. This is a jury question. Agreement to kissing is not itself agreement to intimate touching, and the fact that Christopher thought she would like it does not establish a reasonable belief that she agreed to it.

If Amanda is 15, Christopher is still 17, so the relevant child offence is section 13, applying the elements of section 9 as if he were 18. Her consent would not answer that charge. The prosecution must prove that he did not reasonably believe she was 16 or over. Her lie about her age is relevant but not decisive. His possible liability for sexual assault under section 3 remains a separate question.

4. This question refers to s 4 SOA 2003 - causing a person to engage in sexual activity without consent. Christopher intentionally causes Amanda to engage in the activity and the activity is clearly sexual. The issue falls to consent. Amanda agreed to perform for Christopher, but did not know his friends would watch. Compare R v Devonald and R v Bingham. Section 76(2)(a) requires intentional deception as to the nature or purpose of the activity. Concealing the audience does not by itself establish that. Under section 74 the jury must consider whether performing for Christopher alone was a condition of her agreement, whether the deception about the audience was sufficiently closely connected to the performance to deprive her of that choice, and, separately, whether he reasonably believed she consented.

   If Christopher knowingly operates equipment so his friends can watch Amanda doing a private act for their sexual gratification without her consent, section 67(2) may also apply. Intentionally showing them intimate moving images without her consent or a reasonable belief in it may fall within section 66B(1), subject to the reasonable excuse defence. Amanda is under 18. If the images are indecent, deliberately causing them to be displayed knowing they are or are likely to be indecent images of a child, or showing them to his friends, may also fall within section 1 of the Protection of Children Act 1978.

You will notice from these questions that they mostly focus on consent in various circumstances. This is because this is the largest issue for sexual offences, it being relatively simple to identify the other elements of an offence from the facts. It is important, therefore, that you fully understand the elements of consent as well as learning the other elements of each offence.

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