The Law on Sexual Offences Sexual Offences Act 2003 - definition of ‘sexual’

The definition of sexual is contained within section 78 of the Sexual Offences Act 2003.

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

In deciding whether an activity is sexual look first at the nature of the activity. If the activity is by its nature sexual (e.g. sexual intercourse, masturbation) then it is sexual for the purposes of the legislation.

Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.

Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.

Touching of clothing might be sexual as in the case of R v H [2005] EWCA Crim 732

Sexual Offences Act 2003 - Non-consensual offences

The most common offences are set out in Sections 1-4 of the Act, dealing with offences where the defendant engages in sexual activity with the complainant, without the complainant’s consent.

• s1 Rape
• s2 Assault by penetration
• s3 Sexual assault
• s4 Causing sexual activity without consent (non penetrative)
• s4(4) Causing sexual activity without consent (penetrative)

In relation to these offences, a person (A) is guilty of an offence if (s)he:

• Acts intentionally;
• (B) does not consent to the act;
• And (A) does not reasonably believe that B consents

In relation to many other offences there is no requirement to prove an absence of consent. Only the act itself and the age of the victim/complainant or other criteria need to be proved. They include offences involving children under 16 and children under 18 having sexual relations with persons in a position of trust.

There are a multitude of offences with different sections of the Act covering every type of situation.

Defences

Many cases hinge on the jury’s view of consent. Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”.

Prosecutors should consider this in two stages.

They are:

• Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question
• Whether he or she was in a position to make that choice freely, and was not constrained in any way

Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Reasonable Belief in Consent

Deciding 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 (subsection (2) of sections 1 - 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

The 2003 Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the suspect in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.

• Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test)
• If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element)

There is no requirement to communicate lack of consent. In R v Malone [1998] 2 Cr App R 447, the Court of Appeal confirmed that the actus reus of rape imported no requirement that the complainant demonstrate or communicate to the defendant a lack of consent. What was required was some evidence to be put before the jury of lack of consent, and the nature of that evidence depended on the circumstances of the case. Such evidence may include that the complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs.

Intoxication and Consent

The issue of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs. Prosecutors must be familiar with a number of key cases on this topic.

A complainant does not consent if they are incapacitated through drink. The prosecutor should consider carefully whether the complainant retains the capacity to consent R v Bree [2007] EWCA Crim 804 paragraph 34.

A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious.  A prosecutor must consider the complainant’s state of mind at the time of the alleged assault.  R v Bree paragraph 34.

Evidence of a lack of recollection of events cannot of itself be determinative of issues of consent and capacity.

Complainant’s absence of memory In R v Tambedou [2014] EWCA Crim 954 the Court of Appeal held that the complainant’s evidence that she could not remember was not sufficient for the judge to remove the case from the jury.

Relevance to consent issue of a provable lie told by the defendant regarding whether sexual intercourse took place. In R v Hysa [2007] EWCA Crim 2056, the Court of Appeal the jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.

Consent and Penetration as a Continuing Act

In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw. See New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147.

Consent in Child Sexual Exploitation cases

In cases involving the alleged grooming of vulnerable complainants such as youths, apparent consent to sexual activity may not amount to consent in law. In these circumstances determining whether to select; consensual or non-consensual offences may be complex.

R v Ali and Ashraf [2015] EWCA Crim1279 is of considerable assistance when considering whether to charge non-consensual offences and used the important term “context is all important”. In this case, some guidance was given on how consent should be approached in cases of child sexual exploitation:

When reviewing cases of child sexual exploitation, prosecutors must consider:

• The age and maturity of the complainant especially in relation to the suspect
• The history of the relationship between complainant and suspect;
• The presence of any other vulnerability of the complainant such as a learning disability
• The existence of grooming through the provision of gifts, alcohol, insincere compliments,  apparent security, a more exciting way of life, attention and false promises
• The provision of alcohol and drugs and the effect on the complainant
• The use and/or threat of violence and intimidation
• The use of other means of control such as emotional or situation control

There are a number of additional cases involving children where the issue of consent was considered.

Indecent Images

Child
A child is a person under 18 (s.7(6) of the PCA) and the age of a child is a finding of fact for the jury to determine. Expert evidence is inadmissible on the subject as it is not a subject requiring the assistance of experts (R v Land [1998] 1 Cr. App. R. 301).

Making

“To make” has been widely interpreted by the courts and can include the following:

• opening an attachment to an email containing an image: R v Smith; R v Jayson [2003] 1 Cr. App. R. 13
• downloading an image from a website onto a computer screen: R v Smith; R v Jayson [2003] 1 Cr. App. R. 13
• storing an image in a directory on a computer: Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248
• accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism: R v Harrison [2008] 1 Cr. App. R. 29
• receiving an image via social media, even if unsolicited and even if part of a group
• live-streaming images of children

The breadth of what constitutes “making” means it will often be the appropriate charge rather than “possession”. When a device is seized, it may be the case that an image is stored in such a way that it is not possible to say that the suspect possessed it, because it is not accessible to them. Even if it is not accessible, however, the evidence may show that they had knowingly “made” the image.

Possession

Possession is not defined in the CJA 1988, the PCA 1978 or the CJA 2009. The test to determine possession was set out in R v Okoro (No. 3) [2018] EWCA Crim 1929: the prosecution must prove that the images are within the accused’s custody or control such that they were capable of accessing them and they must know that they possess the images. The accused need not know that the photographs were indecent.

Grossly offensive, disgusting or otherwise of an obscene character

These terms are not intended to be read as three separate concepts. Section 62(2)(c) CJA 2009 outlines that “grossly offensive” and “disgusting” are examples of “an obscene character” and not alternatives to it. The terms reflect the ordinary dictionary definition of “obscene”. This is not a technical definition.

Available offences

Section 1 PCA 1978

There are four sub-paragraphs under section 1(1) PCA 1978 describing the conduct that is illegal in respect of indecent images of children.

• Section 1(1)(a): take, or permit to be taken or to make
• Section 1(1)(b): distribute or show any such photograph
• Section 1(1)(c): have in his possession any such photograph with a view to it being distributed or shown by himself or others
• Section 1(1)(d): publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows any such photographs or intends to do so

Section 160 CJA 1988 – possession of indecent photograph of a child

Section 160 of the CJA 1988 criminalises the possession (rather than making) of an indecent photograph of a child.

Section 62 CJA 2009 – possession of prohibited images of children

This offence is targeted at non-photographic images including computer generated images (CGIs), cartoons, manga images and drawings. It criminalises the possession of images of a child which are intimate or depict sexual activity, which are pornographic and also grossly offensive, disgusting or of an obscene character.

Defences

Legitimate Reason

This defence applies to the offences in sections 1(1)(b) and 1(1)(c) PCA 1978 and in section 160 CJA 1988, namely offences of distributing or possessing with a view to distributing indecent images of children and possessing such images.

The defendant must prove that they had a legitimate reason for the conduct in question, see section 1(1)(4)(a) PCA 1978 or section 160(2)(a) CJA 1988. "Legitimate reason" is not defined in either Act.

In Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248, which dealt with a claim to legitimate reason on the basis of research into child pornography, it was held that it is a pure question of fact in each case.

Lack of Awareness

This defence applies to the offences in sections 1(1)(b) and 1(1)(c) PCA 1978 and in section 160 CJA 1988, namely offences of distributing or possessing with a view to distributing indecent images of children and possessing such images.

The defendant must prove that they had not themselves seen the photograph(s) in question and did not know nor have any cause to suspect them to be indecent (section 1(1)(4)(b) PCA 1978 and section 160(2)(b) CJA 1988).

Section 1A PCA 1978 and section 160A CJA 1988 provide confirmation that a defence is available for photographs of a child aged over 16 where the defendant is married to, or in a civil partnership with, them. The defence does not remove the requirement for consent from the child in question to the photograph: section 1A(4) of the PCA 1978 and section 160A(4) CJA1988.

Unsolicited photographs

This defence that the photographs were unsolicited (s. 160(2)(c) CJA 1988) applies to s160(1) CJA 1988 only. The defendant has a legal defence if they can prove that the photograph in question was unsolicited and that they did not keep it for an unreasonable time (R v Collier [2005] 1 Cr. App. R. 9). The issue of reasonableness is a matter for the jury to decide on the facts of any particular case.

Prohibited images

The defences are outlined in section 64 of the Coroners and Justice Act 2009 (CJA 2009) for offences under section 62(1) CJA 2009. These defences are the same as some of those under section 1(1)(4) PCA 1978 and section 160(2) CJA 1988. There is a further defence for this provision, in relation to classified works, in section 63.

Deleted Images

Whenever a new file is created on a device, the operating system finds available space and allocates that space to the file. Unallocated space (or ‘clusters’) is space that is not allocated to active files within a file system.

As possession requires the images to be in the custody or control of the suspect, if images have been deleted, the following considerations are relevant when prosecutors are considering what, if any, charges can be brought (R v Porter [2006] 1 Cr. App. R. 25; R v Leonard [2012] 2 Cr. App. R. 12):

• Where the images are stored on the device
• The means by which they could be retrieved in the sense set out above
• Whether the suspect has the wherewithal to retrieve them, i.e. the technical knowledge/software/equipment required to do so

Even if an image is located in ‘unallocated clusters’ and cannot be retrieved, provided it can be proved that the image was downloaded or in some way transferred onto the device, a charge of ‘making’ an indecent image can follow. Evidence of the search terms used by the suspect and the dates of searches for indecent material will assist in establishing a case for the making of indecent images.

Indecent Images
www.sentencingcouncil.org.uk/offences/crown-court/item/possession-of-indecent-photograph-of-child/

Sexual Assault
www.sentencingcouncil.org.uk/offences/crown-court/item/sexual-assault/

Rape
www.sentencingcouncil.org.uk/offences/crown-court/item/rape/

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