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The law governing sexual contact between people is among some of the most complicated areas of the 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 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 intercourse between people and provide some detail on the common issues of consent and reasonable belief. For many years, Tuckers Solicitors have represented clients facing allegations of sexual misconduct. Our Special Casework Team, headed by Stuart Sutton, 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 & Wales is the Sexual Offences Act 2003. The legislation is fairly comprehensive and sets out the basis for which a number of crimes will be committed:

Rape and Assault by Penetration- In order for there to be proof that an individual has committed the crime of either rape or assault by penetration, it must be shown that there was penetration. Furthermore, it must also be established that the defendant did not reasonably believe that the claimant had consented to that penetration.

Sexual Assault – Sexual Assault is not as physically severe as the offences listed above. It covers the intentional sexual touching of another person for which no consent has been given, and which there is no reasonable belief that consent has been given.

Causing a Person to Engage in Sexual Activity without Consent – This crime will have been committed where an individual intentionally involves another in some kind of sexual activity, for which no consent has been given, and for which there is no reasonable belief that consent has been given.

The Act gives provision for the same offences mentioned above in respect of children under the age of 13, without requiring any evidence of a belief of consent. Any sexual contact with a child under the age of 13 will be illegal by virtue of its taking place, regardless of the circumstances. The 2003 Act also makes specific provision for crimes involving sexual offences involving children under the age of 16:

Sexual Activity with a Child – It should be noted at the outset that the Act deems any sexual activity involving consenting children under the age of 16 to be illegal. The age of 16 has been set in law as the point in time where children will have developed the mental facilities to be able to consent (or not) to a course of action being taken. Therefore, any individual (an adult by virtue of being aged 18 or above) that has sexual interaction with them where they are below this age, even if they consent, will be vulnerable to a charge of having sexual activity with a child under s.9 of the 2003 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 over takes part in some form of sexual activity, in the knowledge that a child is present or that they are in a position which the child can observe their activities, and knows that the child is aware 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 of 18 years or age or over, causes a child to watch someone engage in sexual activity, or to look at any imagery of this.

It should be noted that all of the crimes listed above concerning children aged under 16 require evidence that the child in question is either under 13 years old, or the defendant in question is shown not to have a reasonable belief that the child is over 16.

Consent and Reasonable Belief

A common issue arising in all allegations of the sexual offences listed above is the need for the defendant to have no reasonable belief that an individual was consenting to sexual contact, or in the case of children aged under 16, no reasonable belief that the child involved was aged 16 or over.

It is important to be aware that the law governing sexual offences has undergone substantial reform. Previously, there was no statutory definition as to the meaning of the term ‘consent’ in the context of sexual offences. However, the 2003 Act fills this gap in the law by defining consent as being: “a person consents if he 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 involving sexual contact, the prosecuting authorities must prove to a court that a defendant had no 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 had no 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 in 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 above 16, this will be a defence to charges of a breach of the 2003 Act.

How is ‘Reasonable Belief’ Demonstrated?

In order to identify that a defendant had a reasonable belief that a complainant either consented to sexual activity, or that they were aged over 16, a jury will have regard for all of the circumstances surrounding the alleged crime. It should be pointed out that the burden of proof 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 had a genuine but unreasonably mistaken belief that an individual was consenting to sexual activity. Under the 2003 Act, there is a specific test for a defendant to meet when attempting to demonstrate their holding a reasonable belief. This 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 is reasonable.

The situation involving a reasonable belief that a child is aged over 16 is largely similar to that involving sexual activity more generally. It will be for a defendant to demonstrate to a jury that they had a reasonable belief of the child’s being aged over 16, and that they had taken all reasonable precautions to determine the age of the child before engaging with them sexually.

Is the Law Different Where Historic Allegations are Made?

The 2003 Act is not the traditional tool that 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.

The 1956 Act deals with sexual offences slightly differently:

Rape is still illegal under the 1956 Act; however, prosecuting authorities must be able to demonstrate that 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 particularly 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 reasonable cause to believe that the child was over 16.

Contact Our Sexual Offences Defence Lawyers(London, Birmingham, Manchester)

Our robust defence preparation, attention to detail and professional representation makes us the first choice for criminal defence. These key traits are essential to safeguarding the rights of our clients from allegations of criminal activity. We discuss all the available options in order to find and implement the best course of action.

Our expert sexual offence solicitors are available 24 hours a day, 7 days a week, ready to advise and assist. For more information, please contact Stuart Sutton on 07798 753 720 or get in touch via our online contact form.

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