Essay On Sexual Offences Act 2003
Prior to the enactment of the Sexual Offences Act 2003, the law on sexual offences was considered to be a “patchwork quilt of provisions ancient and modern that works because people make it do so, not because there is a coherence and structure.” (Setting the Boundaries: Reforming the Law on Sex Offences, Home Office, iii, 2000).
Critically analyse whether the Sexual Offences Act 2003 has remedied these criticisms.
In the UK, around 404,000 women and 72,000 men are reported as victims of sexual violence every year . Laws regarding these horrendous crimes must protect people from abuses, giving priority to children and the more helpless, and punish sexual offenders. In England and Wales, until the enactment of the Sexual Offences Act 2003, sexual …show more content…
offences were based on the previous statute law of 1956 . This was considered to be ‘archaic’, ‘incoherent’, ‘discriminatory’ and not able to "reflect the changes in society and social attitudes” . To address these issues, in 1999 the Home Office began a detailed review process, which laid the foundation of the Sexual Offences Act 2003. It replaced almost all the older legislation with more specific and explicit wording and created various new offences, such as assault by penetration or non-consensual voyeurism. 137
Despite significant reforms, such as the recognition of rape within marriage in 1991 and that of male rape in 1994 , the old common law was found to be very confusing and difficult to apply because of the multitude of acts to which it was necessary to access.
The Home Office Consultation Document Setting the Boundaries (2000) is the starting point of the law’s modernization. This paper set out some recommendations to Ministers by identifying the principles on which the new legislation had to be based. In accordance to the document, the law must be clear, unambiguous, non-discriminatory and in accordance with the ECHR and the Human Rights Act. The law must protect the all community from sexual violence, especially those people who are not able to defend themselves such as children or people with mental disabilities. At the same time, it must establish reasonable penalties for those who commit sexual crimes. Moreover, Setting the Boundaries suggested to clarify what it is meant by ‘unacceptable behavior’ and proposed essential changes to the definitions of rape and …show more content…
consent.
The Government approved most of these recommendations and subsequently drew up the Home Office White Paper Protecting the Public (2002) in order to illustrate the plan for the new legislation.
In this work, it is strongly expressed the intention to improve the whole criminal justice system from the police investigations, to the role of prosecutor, until the cross-examination of the victim and the witnesses. This general need for renewal was confirmed by statistics, which proved that convictions for rape dropped by 25% in 1985 to 7% in 2000 . Today these evidences are greatly changed: the conviction rate for sexual offences has risen from 49.4% in 2005 to 60.3% in 2011 . These numbers would imply that the changes made to the legislation of 1956 have contributed to the improvement of law enforcement. 310
(447)
The Sexual Offences Bill received the Royal Assent on the 20th November 2003 and the Sexual Offences Act 2003 came into force on the 1th May 2004. The Act is considered the major overhaul of sexual crimes of the last century; indeed, it determined what consent is for the first time, changed the definition of rape and provided “a clear legal framework to tackle sexual offending” . One of the guiding principles of this statute was that sexual activity between consenting adults should not be criminalized without good reasons; in consequence certain offenses criminalizing homosexual activity were replaced with generic offenses.
Section 1 of the SOA 2003 replaced the former law with more specific and understandable words. The previous definition of rape was intentional non-consensual sexual intercourse with a man or a woman, where at the time of the offence the accused knew that the person did not consent to the intercourse or was reckless as to whether that person consented to it . Within the cases of R v Kaitamaki and Cooper v Schaub , ‘sexual intercourse’ was interpreted as a continued act from entry to egress, which does not need to be completed and during which the consent can be withdrawn at any time. As we can observe, this provision did not include forced oral sex, which now is recognized to be “as horrible, as demeaning, and as traumatizing as other forms of forced penile penetration” and, in particular, it does not make clear what it is meant by ‘non-consensual’.
Until the SOA 2003 the only guidance about consent was given by the case of Olugboja , which stated that deciding whether the complainant consented or not was a matter of facts and that a jury should be able to distinguish between consent and non-consensual submission. The case of Malone , who had sexual intercourse with a 16 years old girl extremely drunk, established that in some circumstances there was no need to communicate or demonstrate the absence of consent. All this was unsatisfactory, indeed section 74 of the SOA 2003 gave relevant directions by declaring that ‘a person consents if she agrees by choice, and has the freedom and the capacity to make that choice’. It is evident that this explanation is definitely more accurate than its precedent. Additionally, sections 75 and 76 provided six circumstances where consent is presumed to be absent and other two where consent is conclusively presumed to be absent.
Section 1 of the SOA 2003 replaced the former law with more specific and understandable words by defining rape as the intentional non-consensual penile penetration of the vagina, anus or mouth of another person, the defendant not reasonably believing that the other person consents. The new provision specifies that a jury have to regard to all the circumstances and consider any step taken by the defendant to ascertain that the victim consented to determinate whether a belief is reasonable. This has to be seen as a substantial progress in the criminal justice system because, as reported by the case of Morgan , until 2003 an honest mistaken belief, even if unreasonable, would have led to the acquittal of the accused. Despite a subjective test seems usually to be a good way to prevent injustices, in this context it results contradictory because a genuine belief is unlikely to be absurd. Despite the fundamental assumption that the new offenses should not be gender specific, the one of rape has always been understood as forced penile penetration inflicted by a man to a woman or a man.
Critically analyse whether the Sexual Offences Act 2003 has remedied these criticisms.
In the UK, around 404,000 women and 72,000 men are reported as victims of sexual violence every year . Laws regarding these horrendous crimes must protect people from abuses, giving priority to children and the more helpless, and punish sexual offenders. In England and Wales, until the enactment of the Sexual Offences Act 2003, sexual …show more content…
offences were based on the previous statute law of 1956 . This was considered to be ‘archaic’, ‘incoherent’, ‘discriminatory’ and not able to "reflect the changes in society and social attitudes” . To address these issues, in 1999 the Home Office began a detailed review process, which laid the foundation of the Sexual Offences Act 2003. It replaced almost all the older legislation with more specific and explicit wording and created various new offences, such as assault by penetration or non-consensual voyeurism. 137
Despite significant reforms, such as the recognition of rape within marriage in 1991 and that of male rape in 1994 , the old common law was found to be very confusing and difficult to apply because of the multitude of acts to which it was necessary to access.
The Home Office Consultation Document Setting the Boundaries (2000) is the starting point of the law’s modernization. This paper set out some recommendations to Ministers by identifying the principles on which the new legislation had to be based. In accordance to the document, the law must be clear, unambiguous, non-discriminatory and in accordance with the ECHR and the Human Rights Act. The law must protect the all community from sexual violence, especially those people who are not able to defend themselves such as children or people with mental disabilities. At the same time, it must establish reasonable penalties for those who commit sexual crimes. Moreover, Setting the Boundaries suggested to clarify what it is meant by ‘unacceptable behavior’ and proposed essential changes to the definitions of rape and …show more content…
consent.
The Government approved most of these recommendations and subsequently drew up the Home Office White Paper Protecting the Public (2002) in order to illustrate the plan for the new legislation.
In this work, it is strongly expressed the intention to improve the whole criminal justice system from the police investigations, to the role of prosecutor, until the cross-examination of the victim and the witnesses. This general need for renewal was confirmed by statistics, which proved that convictions for rape dropped by 25% in 1985 to 7% in 2000 . Today these evidences are greatly changed: the conviction rate for sexual offences has risen from 49.4% in 2005 to 60.3% in 2011 . These numbers would imply that the changes made to the legislation of 1956 have contributed to the improvement of law enforcement. 310
(447)
The Sexual Offences Bill received the Royal Assent on the 20th November 2003 and the Sexual Offences Act 2003 came into force on the 1th May 2004. The Act is considered the major overhaul of sexual crimes of the last century; indeed, it determined what consent is for the first time, changed the definition of rape and provided “a clear legal framework to tackle sexual offending” . One of the guiding principles of this statute was that sexual activity between consenting adults should not be criminalized without good reasons; in consequence certain offenses criminalizing homosexual activity were replaced with generic offenses.
Section 1 of the SOA 2003 replaced the former law with more specific and understandable words. The previous definition of rape was intentional non-consensual sexual intercourse with a man or a woman, where at the time of the offence the accused knew that the person did not consent to the intercourse or was reckless as to whether that person consented to it . Within the cases of R v Kaitamaki and Cooper v Schaub , ‘sexual intercourse’ was interpreted as a continued act from entry to egress, which does not need to be completed and during which the consent can be withdrawn at any time. As we can observe, this provision did not include forced oral sex, which now is recognized to be “as horrible, as demeaning, and as traumatizing as other forms of forced penile penetration” and, in particular, it does not make clear what it is meant by ‘non-consensual’.
Until the SOA 2003 the only guidance about consent was given by the case of Olugboja , which stated that deciding whether the complainant consented or not was a matter of facts and that a jury should be able to distinguish between consent and non-consensual submission. The case of Malone , who had sexual intercourse with a 16 years old girl extremely drunk, established that in some circumstances there was no need to communicate or demonstrate the absence of consent. All this was unsatisfactory, indeed section 74 of the SOA 2003 gave relevant directions by declaring that ‘a person consents if she agrees by choice, and has the freedom and the capacity to make that choice’. It is evident that this explanation is definitely more accurate than its precedent. Additionally, sections 75 and 76 provided six circumstances where consent is presumed to be absent and other two where consent is conclusively presumed to be absent.
Section 1 of the SOA 2003 replaced the former law with more specific and understandable words by defining rape as the intentional non-consensual penile penetration of the vagina, anus or mouth of another person, the defendant not reasonably believing that the other person consents. The new provision specifies that a jury have to regard to all the circumstances and consider any step taken by the defendant to ascertain that the victim consented to determinate whether a belief is reasonable. This has to be seen as a substantial progress in the criminal justice system because, as reported by the case of Morgan , until 2003 an honest mistaken belief, even if unreasonable, would have led to the acquittal of the accused. Despite a subjective test seems usually to be a good way to prevent injustices, in this context it results contradictory because a genuine belief is unlikely to be absurd. Despite the fundamental assumption that the new offenses should not be gender specific, the one of rape has always been understood as forced penile penetration inflicted by a man to a woman or a man.