The law of sexual offences in England and wales has recently undergone radical reform. Previously, as authorised by s 1(1) of the Sexual Offences Act 1956, **** was defined as 'penetration of the vagina or anus of another without consent'. However, due to the Sexual Offences Act 2003, s 1(1) defines **** as 'penetration of the vagina, anus or mouth of another with his penis and the victim does not consent to the penetration, the defendant does not reasonably believe that the victim is consenting'
Howard and Bernadette are kissing and Bernadette responds enthusiastically. Howard has sex with her. Halfway through, Bernadette tells Howard to stop but he ignores her and carries on.
Application to Scenario 1
In this case, Howard satisfies the requirements laid out in s 1 (1) of the Sexual Offences Act 2003 and they would apply. Howard satisfies the actus reus and the mens rea of ****. s 1(1) of the Sexual Offences Act 2003 requires that there must be a penetration of the vagina, anus or mouth of another with his penis. It is clear that Howard satisfies this requirement because he had sex with Bernadette after she had responded enthusiastically to his kissing. Additionally, s79 of the SOA (2003) states that this penetration must be continuous from entry to withdrawal. (Kataimaki '84)- The defendant was charged with ****. His defence was that when he penetrated the woman he thought she was consenting. When he realised that she objected he did not withdraw. Additionally, there must be a lack of consent, unless the victim agreed by choice. Bernadette consented at the beginning because she had responded to Howard enthusiastically, however, she did tell him to stop half way through, and he ignored her and carried on with the act, making it a continuous act and meaning that consent was no longer valuable. As Howard satisfies the actus reus, he also satisfies the mens rea requirements of s1 (1) as he clearly had the intention to penetrate (due to the fact that he pushed her, then had sex with her). He knew that she did not consent to this because she had told him to STOP.
Howard may also be criminally liable under s 2 (1), which is not **** but assault by penetration. This requires the defendant to penetration the vagina or anus of another with a body part or anything else, but this can also include penal penetration. This is clear in Howard's case, as he had sex with Bernadette. Additionally, he also had the intention to penetrate because he had pushed her to the ground and then had sex with her. Even when he was informed that he should stop, he continued, making it a continuing act. He also had a lack of reasonable belief in Bernadette's consent.
Howard and Penny:
Howard (19) comes over to Penny (14) and starts stroking her face, saying her soft skin 'really turns him on'. When she shouts at him to stop, he goes away.Penny is really attractive and looks older than her age
In Howard and Penny's case, although there was no penetration of the vagina, anus or mouth, Howard may still be criminally liable under s3 (1) of the Sexual Offences Act 2003 as he satisfies the actus reus and mens rea. This requires that the defendant must have touched the victim in a sexual way and the victim does not consent to the touching, additionally, he must intend to touch the victim and lack reasonable belief in her consent. However, this offence has the potential to fail due to the fact that Penny looks older than her age, and he reasonably believed she was older than she actually was.
Howard and Penny:
However, this does not mean he escapes liability for touching her. s 9 (1) of the Sexual Offences Act 2003 requires the defendant to be 18 and over and also sexually touch the victim who is 16 years and under. The defendant must also have the intention to touch the victim and also have no reasonable belief in the fact that she is 16 and over. In this case, Howard is 19 years old, clearly satisfying this requirement, and also touches Penny in a sexual nature (as supported by the fact that he says her 'soft skin really turns him on'. Additionally, Penny is under 16 years old. Howard also satisfies the mens rea requirements as he obviously intended to touch Penny. However, as Penny looked older than she was and was also very attractive, he may have had reasonable belief that she was older than she looked.
Leonard and Penny:-
Later at the Party, Leonard (15) and Penny (14) retire to a bedroom where they kiss and caress each other on the bed.
Leonard and Penny are both under 16, with Leonard being 15 and Penny being 14. s13 (1) states that the defendant will be guilty of a sexual offence if he is over 18 and sexually touches the victim intentionally but has lack of reasonable belief that the victim is 16 and over. Although s13 (1) does not relate to Leonard, s9(1) of the SOA 2003 creates a new offence of sexual activity with a child. This means that even if the defendant is under 18, he can still be guilty of a sexual activity with a child.
This does not, however, take into account that Penny consented to the sexual activity.
The absence of consent does not have to be shown by offering resistance or by communicating it to the defendant, but if it is not communicated, the mens rea as to the absence of consent may be more difficult to prove