Sexual Offences Act 2003 Essay
Student Number: 14006073
Module Name and Number: Criminal Law UJUTD3-30-1
Coursework question: 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.
Word count: 1476 words.
The laws concerning sexual offences have always attracted criticism upon them because the legislative language with which were drafted were often considered to be inconsistent and gender-biased. For instance, the absence of the word ‘consent’ in the Sexual Offences Act 1956 and the unclear definition of rape, according to which ‘it is a felony for a men to rape a …show more content…
woman’1, with no other details being specified, persuaded the judges to not believe that a woman had been raped in the past, unless violence existed. Also, the Government considered that the existing law on sexual offences was ‘archaic, incoherent and discriminatory’ and that it failed to reflect ‘changes in society and social attitudes’, as stated in its White Paper of 20022. The Sexual Offences Act 2003 mentions and defines consent clearly as ‘agreement by choice’ made freely by a person with capacity3. However, legal resources, such as: relevant case law, legislation and secondary data analysis will be the methodology used in order to establish whether or not the Sexual offences Act 2003 has eliminated the pre-existing criticism.
The Sexual Offences Act 1956 was the first piece of legislation that mentioned rape, but in a very unclear manner by referring to the criminal conduct as ‘a man who induces a married woman to have sexual intercourse with him by impersonating her husband’4. At that point, the consent was still missing from the definition and the law in force was far from being fair, because whether or not the rape had taken place was a mission for the jury to decide based on the existing evidence. Furthermore, rape within marriage has been a crime since 1991 only, and the general idea of what consent was in a marriage should have been clarified since the case of Clarence5, in which the wife consented to sex with her husband, but not to the sexual disease that she automatically received during the intercourse, so according to the SOA 1956 her consent was held to be valid, as to sex and infection. Another major problem was with the indecent assault because it was very broad and included offences from a low level of crime, such as the case of Tabassum, where the deception was used to stroke women’s breasts6, to a significantly high criminal conduct such as forced oral sex as in the case of McAllister7 or the penetration of vagina with a hand as it was the case of Boyea8.
The next eloquent piece of statue is the Sexual Offences Amendment Act 1976, in which the requirement of an honest belief appeared for the first time9. Hence, the consent is mentioned but still not defined, and a defence based only on honest belief and not necessarily a reasonable belief did not help in the case of DPP v Morgan, in which the husband invited three men to have sex with his wife and told them not to stop regardless of her reactions10. He was found guilty of rape and ‘as every lawyer knows, consent in any legal context may in principle be vitiated by force, fraud or mistake’11.
The law fiercely needed a reform because there was no legal definition of consent, the lack of gender neutrality was problematic, the defence of honest belief in consent had to be changed and the law on indecent assault covered a wide range of offences that had to be recategorised12.
The Sexual Offences Act 2003 came into force on the 1st of May 2004 and brought major changes to the actus reus and the means rea for rape. The actus reus consists of three important elements: there must be a penile penetration, so women cannot rape men, the penetration must be of the vagina, anus or mouth, which means that men can be victims as well, and the key bit is that there must be no consent. In the case of Ismail13, in which a man forced a sixteen-year-old girl to perform oral sex, it was stated that the oral rape is as serious as the penetration of the vagina or anus. It is obvious that the new law has remedied some of the previous criticism, mostly considering that it offers a coherent definition of rape and consent and also includes the penetration of mouth. The SOA 2003 is less discriminatory due to the gender neutrality, the expanded definition of rape that now refers to oral penetration, which has similar high risks for sexually transmitted diseases14, and the inclusion of transsexual activities, so surgically constructed vagina is now considered.
In terms of mens rea, there must be intentional penetration, the lack of reasonable belief that the victim consents, and the reasonable belief is determined having regard to all the steps that the defendant has taken to ascertain whether the victim consents, so the reckless rape no longer exists15.
The indecent assault has now been divided in three different offences. The first one is assault by penetration, which can be committed by either a woman or a man, and includes vaginal or anal penetration16. The next one is sexual assault which under the SOA 1956 was referred to as ‘indecent assault’, and includes forced oral sex and penetration17. The third offence within the new law is about causing a person to engage in sexual activity without consent, and as with rape, there is a defence of reasonable belief in consent that can be claimed18. However, the new law may not have remedied all the major pre-existing criticism, and this fact can be supported by analysing the functions of the rebuttable and conclusive presumptions about consent.
Under the SOA 2003 it is shown that a presumption about consent can be rebuttable when the victim was asleep, spiked or when violence was used19, but when the victim was deceived as to the nature or purpose of the act it is conclusive that there was no consent20. A strong example is the case of Williams21, in which a choirmaster persuaded the victim to agree to sexual intercourse because it would improve her breathing. Having said that, a new criticism appeared on these specific sections, saying that ‘obtaining compliance by using violence or threats of immediate violence seems no less heinous than doing so by deception, and yet the Act creates a conclusive presumption in the latter one and only a rebuttable one in the former’22. Hence, an obvious difference has been subliminally created.
The laws on sexual offences are overprotective with children, having very strict punishments for some specific criminal conducts. For example, in the case of Corran23, a twelve-year-old girl who lied that she was sixteen, initiated the sexual act with a twenty-year-old man and even though it was consensual, he was convicted for rape of a child under 1324.
Furthermore, the new law on incest includes offences that the old law failed to mention, and introduced a reasonable maximum penalty of two years, so the gaps and inconsistencies in the SOA 1956 are now covered.
Criticism is brought upon the Sexual Offences Act 1985 as regard to the prostitution, because the gender neutrality did not exist and the application of the law itself is more a mechanical and technical one. In the case of DPP v Bull25 it was stated that ‘common prostitute’ did not include men, but the new law has remedied this aspect according to the s51(2) of SOA 200326. Also, buying sexual services from persons who are forced or coerced to perform sex, whether or not the purchaser knows, is a strict liability offence, so there is no defence of reasonable belief in consent27.
As regard to the intercourse with an animal, the ss12 and 13 of SOA 1956, placed emphasis on the moral perspective of the offence, and the perpetrator’s need for help was taken into account, rather than the harm produced to the animal.
For example, the conviction was quashed in the case of Higson28 when a man attempted to bugger his female dog and got caught by his wife, because the sentence was considered to be inappropriate. The new law itself came as a form of criticism for the old law, by focussing on the animal as a ‘victim’29.
In conclusion, the Sexual Offences Act 2003 has remedied a substantial amount of criticism that was raised by the old law, by elaborating the new legislation in a way that gives a clear definition of rape and consent. However, the new law was drafted in such a manner that can lead to a new series of criticism, on one hand because of the subliminal blurred line created between the rebuttable and conclusive presumptions about consent, and on the other hand because of the broad and technical approach that the laws on prostitution and bestiality
imply.
Bibliography
Primary Sources:
1) Table of Cases
Boyea [1992] Crim LR 574.
DPP v Bull [1994] 4 All E.R. 411.
Clarence (1888) 22 QBD 23.
Corran & Others [2005] EWCA Crim 192.
R v Higson (1984) 6 Cr App R (S) 20.
Ismail [2005] EWCA Crim 397.
McAllister [1997] Crim L.R. 233.
DPP v Morgan [1976] AC 182 (HL).
Tabassum [2000] 2 Cr App R 328.
R v Williams [1923] 1 KB 340.
2) Table of Legislation
Sexual Offences Act 1956, s 1(1).
Sexual Offences Act 1956, s 1(2).
Sexual Offences Act 2003, s 2.
Sexual Offences Act 2003, s 3.
Sexual Offences Act 2003, s 4.
Sexual Offences Act 2003, s 5.
Sexual Offences Act 2003, s 69.
Sexual Offences Act 2003, s 74.
Sexual Offences Act 2003, s 75.
Sexual Offences Act 2003, s 76.
Sexual Offences Act 2003, s 53A inserted by the Policing and Crime Act 2009.
Sexual Offences Amendment Act 1976, s 1.
Sexual Offences Act 2003, ss 64-65.
Sexual Offences Act 2003, ss 14 and 15.
Secondary Sources:
1) Books
Loveless J, Criminal Law (4th, Oxford University Press, Oxford 2014)
2) Journals
The Cambridge Law Journal, 66[2007], pp 490-493.
Jennifer Temkin and Andrew Ashworth, “The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problem of consent” [2004] Crim L.R. 328.
Setting the Boundaries: Reforming the Law of Sex Offences, Home Office, iii, 2000.
3) Official Publications
Home Office, Protecting the Public, para. 4 (Cm.5668, 2002).
Module Name and Number: Criminal Law UJUTD3-30-1
Coursework question: 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.
Word count: 1476 words.
The laws concerning sexual offences have always attracted criticism upon them because the legislative language with which were drafted were often considered to be inconsistent and gender-biased. For instance, the absence of the word ‘consent’ in the Sexual Offences Act 1956 and the unclear definition of rape, according to which ‘it is a felony for a men to rape a …show more content…
woman’1, with no other details being specified, persuaded the judges to not believe that a woman had been raped in the past, unless violence existed. Also, the Government considered that the existing law on sexual offences was ‘archaic, incoherent and discriminatory’ and that it failed to reflect ‘changes in society and social attitudes’, as stated in its White Paper of 20022. The Sexual Offences Act 2003 mentions and defines consent clearly as ‘agreement by choice’ made freely by a person with capacity3. However, legal resources, such as: relevant case law, legislation and secondary data analysis will be the methodology used in order to establish whether or not the Sexual offences Act 2003 has eliminated the pre-existing criticism.
The Sexual Offences Act 1956 was the first piece of legislation that mentioned rape, but in a very unclear manner by referring to the criminal conduct as ‘a man who induces a married woman to have sexual intercourse with him by impersonating her husband’4. At that point, the consent was still missing from the definition and the law in force was far from being fair, because whether or not the rape had taken place was a mission for the jury to decide based on the existing evidence. Furthermore, rape within marriage has been a crime since 1991 only, and the general idea of what consent was in a marriage should have been clarified since the case of Clarence5, in which the wife consented to sex with her husband, but not to the sexual disease that she automatically received during the intercourse, so according to the SOA 1956 her consent was held to be valid, as to sex and infection. Another major problem was with the indecent assault because it was very broad and included offences from a low level of crime, such as the case of Tabassum, where the deception was used to stroke women’s breasts6, to a significantly high criminal conduct such as forced oral sex as in the case of McAllister7 or the penetration of vagina with a hand as it was the case of Boyea8.
The next eloquent piece of statue is the Sexual Offences Amendment Act 1976, in which the requirement of an honest belief appeared for the first time9. Hence, the consent is mentioned but still not defined, and a defence based only on honest belief and not necessarily a reasonable belief did not help in the case of DPP v Morgan, in which the husband invited three men to have sex with his wife and told them not to stop regardless of her reactions10. He was found guilty of rape and ‘as every lawyer knows, consent in any legal context may in principle be vitiated by force, fraud or mistake’11.
The law fiercely needed a reform because there was no legal definition of consent, the lack of gender neutrality was problematic, the defence of honest belief in consent had to be changed and the law on indecent assault covered a wide range of offences that had to be recategorised12.
The Sexual Offences Act 2003 came into force on the 1st of May 2004 and brought major changes to the actus reus and the means rea for rape. The actus reus consists of three important elements: there must be a penile penetration, so women cannot rape men, the penetration must be of the vagina, anus or mouth, which means that men can be victims as well, and the key bit is that there must be no consent. In the case of Ismail13, in which a man forced a sixteen-year-old girl to perform oral sex, it was stated that the oral rape is as serious as the penetration of the vagina or anus. It is obvious that the new law has remedied some of the previous criticism, mostly considering that it offers a coherent definition of rape and consent and also includes the penetration of mouth. The SOA 2003 is less discriminatory due to the gender neutrality, the expanded definition of rape that now refers to oral penetration, which has similar high risks for sexually transmitted diseases14, and the inclusion of transsexual activities, so surgically constructed vagina is now considered.
In terms of mens rea, there must be intentional penetration, the lack of reasonable belief that the victim consents, and the reasonable belief is determined having regard to all the steps that the defendant has taken to ascertain whether the victim consents, so the reckless rape no longer exists15.
The indecent assault has now been divided in three different offences. The first one is assault by penetration, which can be committed by either a woman or a man, and includes vaginal or anal penetration16. The next one is sexual assault which under the SOA 1956 was referred to as ‘indecent assault’, and includes forced oral sex and penetration17. The third offence within the new law is about causing a person to engage in sexual activity without consent, and as with rape, there is a defence of reasonable belief in consent that can be claimed18. However, the new law may not have remedied all the major pre-existing criticism, and this fact can be supported by analysing the functions of the rebuttable and conclusive presumptions about consent.
Under the SOA 2003 it is shown that a presumption about consent can be rebuttable when the victim was asleep, spiked or when violence was used19, but when the victim was deceived as to the nature or purpose of the act it is conclusive that there was no consent20. A strong example is the case of Williams21, in which a choirmaster persuaded the victim to agree to sexual intercourse because it would improve her breathing. Having said that, a new criticism appeared on these specific sections, saying that ‘obtaining compliance by using violence or threats of immediate violence seems no less heinous than doing so by deception, and yet the Act creates a conclusive presumption in the latter one and only a rebuttable one in the former’22. Hence, an obvious difference has been subliminally created.
The laws on sexual offences are overprotective with children, having very strict punishments for some specific criminal conducts. For example, in the case of Corran23, a twelve-year-old girl who lied that she was sixteen, initiated the sexual act with a twenty-year-old man and even though it was consensual, he was convicted for rape of a child under 1324.
Furthermore, the new law on incest includes offences that the old law failed to mention, and introduced a reasonable maximum penalty of two years, so the gaps and inconsistencies in the SOA 1956 are now covered.
Criticism is brought upon the Sexual Offences Act 1985 as regard to the prostitution, because the gender neutrality did not exist and the application of the law itself is more a mechanical and technical one. In the case of DPP v Bull25 it was stated that ‘common prostitute’ did not include men, but the new law has remedied this aspect according to the s51(2) of SOA 200326. Also, buying sexual services from persons who are forced or coerced to perform sex, whether or not the purchaser knows, is a strict liability offence, so there is no defence of reasonable belief in consent27.
As regard to the intercourse with an animal, the ss12 and 13 of SOA 1956, placed emphasis on the moral perspective of the offence, and the perpetrator’s need for help was taken into account, rather than the harm produced to the animal.
For example, the conviction was quashed in the case of Higson28 when a man attempted to bugger his female dog and got caught by his wife, because the sentence was considered to be inappropriate. The new law itself came as a form of criticism for the old law, by focussing on the animal as a ‘victim’29.
In conclusion, the Sexual Offences Act 2003 has remedied a substantial amount of criticism that was raised by the old law, by elaborating the new legislation in a way that gives a clear definition of rape and consent. However, the new law was drafted in such a manner that can lead to a new series of criticism, on one hand because of the subliminal blurred line created between the rebuttable and conclusive presumptions about consent, and on the other hand because of the broad and technical approach that the laws on prostitution and bestiality
imply.
Bibliography
Primary Sources:
1) Table of Cases
Boyea [1992] Crim LR 574.
DPP v Bull [1994] 4 All E.R. 411.
Clarence (1888) 22 QBD 23.
Corran & Others [2005] EWCA Crim 192.
R v Higson (1984) 6 Cr App R (S) 20.
Ismail [2005] EWCA Crim 397.
McAllister [1997] Crim L.R. 233.
DPP v Morgan [1976] AC 182 (HL).
Tabassum [2000] 2 Cr App R 328.
R v Williams [1923] 1 KB 340.
2) Table of Legislation
Sexual Offences Act 1956, s 1(1).
Sexual Offences Act 1956, s 1(2).
Sexual Offences Act 2003, s 2.
Sexual Offences Act 2003, s 3.
Sexual Offences Act 2003, s 4.
Sexual Offences Act 2003, s 5.
Sexual Offences Act 2003, s 69.
Sexual Offences Act 2003, s 74.
Sexual Offences Act 2003, s 75.
Sexual Offences Act 2003, s 76.
Sexual Offences Act 2003, s 53A inserted by the Policing and Crime Act 2009.
Sexual Offences Amendment Act 1976, s 1.
Sexual Offences Act 2003, ss 64-65.
Sexual Offences Act 2003, ss 14 and 15.
Secondary Sources:
1) Books
Loveless J, Criminal Law (4th, Oxford University Press, Oxford 2014)
2) Journals
The Cambridge Law Journal, 66[2007], pp 490-493.
Jennifer Temkin and Andrew Ashworth, “The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problem of consent” [2004] Crim L.R. 328.
Setting the Boundaries: Reforming the Law of Sex Offences, Home Office, iii, 2000.
3) Official Publications
Home Office, Protecting the Public, para. 4 (Cm.5668, 2002).