The law governing sexual contact between people is amongst some of the most complicated areas of criminal law in England and Wales. Notwithstanding the fact that the legislation in this area has undergone substantial reform, the current rules regarding “consent” and sexual offences are not well understood.
For both the Complainant and the Accused/Defendant, the prospect of being involved in what will often be a long period of questioning and investigation by the police and prosecuting authorities is likely to be distressing. Alleged criminal conduct involving sexual contact is also particularly challenging for the Courts to handle. These cases often involve sensitive and highly emotive circumstances, which must be investigated in a calm and judicious manner.
Here we provide an overview of the law on sexual contact between people and provide some detail of the common issues of consent and reasonable belief. For many years, we have represented clients facing allegations of sexual misconduct. We understand that being charged with having committed a sexual offence is a very serious matter. As a result, we take pride in offering effective and sensitive legal advice and representation to individuals that are subject to these allegations.
The Modern Law on Sexual Offences in England & Wales
The most important piece of legislation concerning allegations of sexual activity in England and Wales is the Sexual Offences Act 2003. The legislation is comprehensive and sets out the basis for which a number of crimes can be committed.
Rape and Assault by Penetration
In order for the Prosecution to prove that an individual has committed a crime of either rape or sexual assault by penetration, it must be shown that there was penetration. Therefore, in a rape case, it must be established that the Defendant penetrated the vagina, anus or mouth on a female with his penis in order to constitute rape or the mouth or anus of a male. For a sexual assault by penetration, the vagina, anus or mouth of a female or anus of a male must be penetrated by an object other than a penis in order before either of these offences can be made out.
It is for the Defendant to show that he held a “reasonable belief” that the Complainant had not consented to the penetration.
Sexual assault is not as physically severe as rape or sexual assault by penetration. It covers the intentional sexual touching of another person for which no consent has been given and for which there was no reasonable belief that consent was being given.
Sexual Activity with a Child
The 2003 Act provides for offences in respect of children under the age of 13, without requiring any evidence of a belief in consent. The sexual contact with a child under the age of 13 will be illegal by virtue of it having taken place, regardless of the circumstances. The Act also provides specific provision for crimes involving sexual offences involving children aged 13 to 15.
However, we were involved in a case where an 18-year-old male had sexual intercourse with a 12-year-old female and we did manage to persuade the Crown Prosecution Service that the male had a reasonable belief that the 12-year-old was consenting (R-v- L, Leicestershire).
The age of 16 has been set in law as a point in time where children will be sufficiently developed mentally to be able to consent (or not) to a course of action being taken. Therefore, any adult that has a sexual interaction with any other person when that other person is below the age of 16, even if they consent, will be vulnerable to a charge of Engaging in Sexual Activity with a Child contrary to Section 9 of the Act.
Causing or Inciting a Child to Engage in Sexual Activity
This offence will have been committed where an individual aged 18 or above causes or incites a child to become involved in some form of sexual activity.
Engaging in Sexual Activity in the Presence of a Child
If someone aged 18 or overtakes part in some form of sexual activity in the knowledge that a child is present or they are in a position which the child can observe the activity, and knows that the child is aware of or intends for them to become aware of the sexual activity, then they are vulnerable to the criminal charge of having engaged in sexual activity in the presence of a child.
Causing a Child to Watch a Sexual Act
As mentioned above, the 2003 Act is comprehensive and criminalises a wide range of activities. It will also be a crime where an individual aged 18 years or over, causes a child to watch someone engage in sexual activity, or to look at imagery of this.
All of the above-noted offences relate to children under the age of 16 and require that a Defendant is shown to know or should know that the person with whom they are engaging is under the age of 16. It is for the Defendant to show that he had a reasonable belief that the person he was involved with was 16 or older.
Consent and Reasonable Belief
A common issue in all allegations of sexual offences is the need for the Defendant to have no reasonable belief that the individual he was concerned with was consenting to the sexual act, or in the case of the children under the age of 16, no reasonable belief that the child involved was aged 16 or over.
Prior to the 2003 Act coming into force in May 2004, there was no statutory definition as to the meaning of the term “consent” in the context of sexual offences. However, the 2003 Act fills that gap in the law by defining consent as being,
“A person consents if he/she agrees by choice, and has the freedom and capacity to make that choice”.
In order to achieve a conviction in a case involving alleged crimes of sexual contact, the prosecuting authority (CPS/Crown) must prove to the Court that the Defendant did not have a reasonable belief that consent had been given by the Complainant.
The same is also true for individuals charged with engaging in sexual activities with children under the age of 16. In order to pursue a conviction, prosecutors must be able to demonstrate that the individual concerned did not have a reasonable belief that the child in question was over 16.
This can prove a difficult task for prosecutors in a criminal trial, particularly when the defence cogently argues the issue. If there is scope to be able to demonstrate to a Court of Law either that there was a reasonable belief that consent was given or that there was a reasonable belief that a child was aged 16 or above, this may be a defence to allegations of having acted contrary to any of the sections of the 2003 Act.
How is ‘Reasonable Belief’ Demonstrated?
In order to identify that a Defendant has a reasonable belief that the Complainant either consented to sexual activity or that the Complainant was aged 16 or over, a jury will have regard to all of the circumstances surrounding the alleged crime. It should be pointed out that the burden of truth in demonstrating a reasonable belief lies with the Defendant.
In law, it is no defence to any allegation of a breach of the 2003 Act to have a genuine but unreasonably mistaken belief that an individual was consenting to sexual activity. Pursuant to the 2003 Act, there is a specific test for a Defendant to meet when attempting to demonstrate that he/she held a reasonable belief. The test is subjective, but is balanced with an objective element:
- Did the Defendant believe that the Complainant was consenting? This is a question that is aimed at determining a Complainant’s capacity to consent in the circumstances and,
- If the Defendant did believe consent was given by the Complainant, was the Defendant’s belief reasonable?
It is important to be aware that it is for the jury to decide whether or not a Defendant’s belief that consent was given, was a reasonable belief.
The situation involving a reasonable belief that a child was aged 16 or over is largely similar to that involving sexual activity with adults. It will be for the Defendant to demonstrate to a jury that he had a reasonable belief that the child was aged 16 or older and that he/she had taken all reasonable precautions to determine the age of the child before engaging in sexual activity with them.
Is the Law Different Where Historic Allegations are Made?
The 2003 Act is not the traditional tool the prosecuting authorities will use when attempting to prove a charge of historic sexual offences. This is where prosecutors, assuming that the crime in question is alleged to have occurred before May 2004 will use the Sexual Offences Act 1956 and perhaps the Indecency with Children Act 1960.
The Indecency with Children Act 1960 relates to offences that are not commonly within the 1956 Act. Gross Indecency with a Child is the main one.
The 1956 Act deals with sexual offences in a slightly different way to the 2003 Act.
Rape is still illegal under the 1956 Act however, prosecuting authorities must be able to demonstrate the Defendant knew that there was no consent to intercourse given by the other party. The 1956 Act gives no statutory definition of consent, requiring prosecuting authorities to provide particular convincing evidence that it was not given.
The 1956 Act still deems it to be illegal for there to be sexual intercourse with a child under the age of 13. The situation is more complex with historic allegations of sexual intercourse with a child aged between 13 and 16. Prosecuting authorities must be able to prove, in making their case, that the Defendant did not have a reasonable cause to believe that the child was over the age of 16.
Contact Our Sexual Offences Defence Lawyers (London, Birmingham, Manchester)
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