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Essay on Sexual Assault According to the Sexual Offences Act 2003

No. of words-3,345

Cases of sexual assault in the United Kingdom have been on the rise. According to the British Transport Police, there has been a recorded increase in sexual harassment cases happening inside public transport service providers such as trains. Research done by Hollaback and Cornell University goes on to explain that 84% of the female population encounter harassment before they turn 17.

The United Kingdom constitutes Scotland, Wales and England and North Ireland. Even though they are under one rule, these three parts of the United Kingdom have different laws when it comes to sexual harassment. England and Wales use the Sexual Offences Act of 2003. Scotland, on the other hand, relies on the Sexual Offences Act of 2009. Northern Ireland follows the Sexual Offences Order 2008.

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According to these Acts, rape can be defined as:

  1. The intentional penetration of a penis into a vagina, mouth or anus by person A without person B’s consent.
  2. If A does not fully believe that B was an interested party. In other words, A does not believe that B had been a willing participant1.

If any of these happens, then A can be accused before a court of law of rape. However, when it comes to section (b), a belief does not hold much ground in ascertaining whether A consented. The law also considers it rape if a male adult has sexual relations with a girl under the age of 16 in England [1]and Wales. The children rights are better explained in the Sexual Offences Act under ‘child sex offenses.’ This act seeks to protect children under the age of 12. Any individual caught engaging in a sexual act with a minor is liable to life imprisonment.[2]

A woman can also face legal repercussions if she plays a part in helping a man in raping a third party. In this case, the woman would face similar jail term as the man who committed the act.

Sexual Offences Act of 2003

According to this act:

  1. A woman cannot commit rape. But she can be accused of rape if she is an accomplice of sexual assault on another female.
  2. A man who rapes another man is also guilty of rape and will face a similar jail term to that of a man who rapes a woman.2

This 2003 Act is a more detailed and better version of the previous acts. It introduced additional laws such as; the penetration of a corpse, insight and causing a minor to watch any sexually stimulating films such pornography. The Sexual Offences Act of 2003 also touches on individuals who travel out of the country with the motives of indulging in sexual mischief.3 Such people are likely to face travel restrictions and in more severe cases, the courts are allowed to confiscate their travel documents.

Unless two people indulging in sex have consented to the act, then the sexual act is rape. Consent is arrived at when the recipient is in a normal state of mind and not under the influence of any drug. However, there is an exemption in a situation where a woman partakes of any alcoholic voluntarily and her five senses are functioning normally and she agrees to engage in sex, then this would not be considered rape. However, if the alcohol affects her reasoning capability, and has sexual relations, then this is rape.

Case Study

In this case study, there are three men David, Prince, and Michael, who are of consenting ages. They decide to go out in a bar with the intentions of looking for girls to have sex with. They come across three girls Tina, Whitney, and Cindy in a local grunge club. Prince approaches Cindy and lies to her that he is a popular Tv personality known as Prince Jones. Cindy who idolizes Prince Jones is excited to meet him in the flesh. He promises to start a relationship with her and take her on a tour to Tv studios where she can meet other celebrities. Impressed by this, the girls invite the three men back to their apartment for coffee. Cindy and Prince end up having sex. David and Whitney kiss in the living room while Michael and Tina are making coffee and toast in the kitchen.

David slips a sedative into Whitney’s coffee which leaves her drowsy and disoriented and then he has sex with her. Tina finds the pills and orders, Michael, to leave. However, Michael pulls out a knife on her and asks for sex which she accepts out of fear. Once the men leave, the girls rush to call the police. However, the men insist that the girls had consented to sex. Cindy Is infected with Gonorrhea which she contracts from Prince.

The case study presented above presents three different scenarios. The first case involves Cindy and Prince who agree to have consensual sex. However, in this case, Cindy agrees to have sex with Prince under a false illusion. The second situation in the case study above involves David and Whitney. Whitney is in a drug-induced state when she and David engage in sexual intimacy. In the third scenario, Tina and Michael are the main protagonists. Tina consents to engage in sexual acts out of fear for her life.

If thess case was presented in court, would David, Michael, and Prince be guilty of rape? And if so, which sections under the Sexual Offences Act of 2003 would they have violated? To answer these questions requires a thorough review of the Sexual Offences Act 2003.

Rape by Deception

Even though rape by deception in the United Kingdom is narrowly detailed, individuals who indulge in it still face prosecution. In the previous Sexual Offences Act of 1956, the issue of ‘procuring sex through false pretense’ had only touched on spouses.4 However; the 2003 Act has broadened this clause to include individuals personally known to the victim. Nonetheless, the courts in the UK have prosecuted people who acquire sex under false pretenses even though the victim did not know them on a personal level. A good example is the Gayle Newland case of 2015 where Judge Roger Dutton found her guilty after pretending to be a man in order to have sexual relations with another woman. The other woman was led to believe for an unnamed period of time that Newland was a man. As a result, she had [3]agreed to engage in sexual relations on several occasions with Newland.

The judge may have arrived at this ruling based on s.76 (2) (a).5 The section states that deception as to purposes is illegal. Prince managed to convince Cindy to consent to the sexual act under false pretense. First of all, she was under the illusion that Prince was her celebrity idol and that he was interested in establishing a relationship with her. Had she been privy to the truth, she might not have consented to sex. However, the defendant may argue that according to s76 (2) (a) (b), a person is guilty of deception if the victim has a personal knowledge of the person the accused is imitating. Cindy had no personal relationship with Prince Jones. He was a celebrity who she only saw on TV. Therefore, her argument may not satisfy section 76. 6 In this matter, it would be up to the jury to analyze the situation and determine whether there are enough grounds to charge Prince with rape.

In regard to the Sexually Transmitted Disease, for the court to determining the ruling in this issue, then it will have to refer to the Offences against the Person Act 1861. The act seeks to protect individuals from bodily harm. According to the judicial system, infecting another person with sexually transmitted illnesses can cause paramount health problems which may be life-threatening. [4]

A prosecutor handling this case is likely to refer to the sections 18 and 20 of the same act. In 2014, the courts ruled on a case involving R V Golding. During the hearing, it was discovered that the offender knew that he had genital herpes but failed to disclose it to the victim. As a result, the courts had to analyze whether infecting another individual with genital herpes could be categorized as causing serious bodily harm. The court ruled that R V Golding had failed to disclose his condition to his partner thereby robbing her of the chance to decide whether she was willing to risk her health. He was found guilty in accordance with section 20 of the Offences against the Person Act 1861.7

In retrospect, Prince may have knowingly or unknowingly risked the health of Cindy. However, in the case study, it remains unclear whether Prince was aware of his health status. Therefore, if Cindy filed a case against him, the prosecutor would have to prove beyond reasonable doubt that Prince was privy to his health status but chose to remain mum about it. Prosecutors are advised to avoid presenting such cases in courts unless there is proof that the offender recklessly and willingly exposed the victim to the sexually transmitted disease.

In conclusion to Prince and Cindy’s situation, it is not a clear-cut case. The case can go either way because there are no sufficient grounds to charge Prince. It is up to the prosecutor to bring strong argumentative points which the jury will analyze and if need be, refer to previous rulings of cases with similar circumstances and the Sexual Offences Act 2003.

Drug-Induced Sexual Assault

David slips a sedative in Whitney’s coffee. Therefore, he can be charged with drug-induced sexual assault. This type of assault involves the incapacitation of a victim through the consumption of alcohol or sleeping drugs without the victim’s knowledge.8 It is a common practice used by assailants to subdue their victims. However, 75% of the times, these assailants use alcohol to achieve the desired result. In a study conducted in the UK in a three year period showed that 2% of 1,014 women were reportedly drugged before being raped. All these victims had traces of sedatives in their system.

The drug-induced sexual assault also known as “date-rape” is slowly becoming a menace in Europe. The first reported date-rape case was in the 90s. According to these reports, the assailants used Rohypnol and GHB. Both of these drugs lender a person weak and disoriented making them an easy prey. They also inhibit an individual’s ability to remember certain events once the drugs wear off.[5]

In 2005, a court in the United Kingdom gave a not guilty verdict after a rape victim failed to recall the events that had taken place during the time of the rape. However, this verdict was met with a lot of opposition from the Members of Parliament. In their arguments, the MPs pointed out that the Sexual Offences Act of 2003 section 74 clearly outlines that for a court to determine that there was consent in a sexual act, then there should be proof beyond reasonable doubt that there was freedom and capacity. Relating the act to this case, it is evident that the rape victim was not fully aware of her surrounding much less of what she was doing. Therefore, they argued that the courts had made an unlawful ruling.

In the case study above, when David slips a sedative in Whitney’s coffee, she loses control of her five senses. Sections 74, 75 and 76 of the Sexual Offences Act 2003 clearly outline what the law means by the term ‘consent.’ For sex to be considered consensual, both parties have to willingly engage in the sexual act.12 In this scenario, Whitney’s drugged state robbed her the capacity to make any rational decision. She also lacked the freedom to decide whether she wanted to have sex with David due to her drowsy state. [6]

David is thereby liable to a life imprisonment. Traces of the sedative he slipped in Whitney’s coffee are traceable 12 hours after the sexual act. Therefore, if the prosecutor used this test results and incorporated Tina’s testimony, they have sufficient grounds to build a case against him.

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Unlike the previous case of Prince and Cindy which is not easy. David’s case is black and white in reference to s75.

Rape Coerced through Threat of Violence

Unlike the Act of 1956, the Sexual Offences Act of 2003 tries to explain the meaning of consent. Prior to the Act of 2003, the courts had a difficult time determining what was consensual and what wasn’t. Going back to 1982, where a case was filed pertaining two girls. The girls were in the midst of a group of men. One of the girls was raped while the other agreed to have sex. During the trial, the court requested to be notified whether the girl who agreed to sex consented or was coerced into contention. This case proved to be a little difficult given the vague description of consent in the Sexual Offences Act of 1956.10 It was agreed upon that for the court to come to a fair and conclusive decision, the jury needed a little more insight on the meaning of consent.

The case of John Townsend who raped a woman at gun point in the 90s is a [7]good example of rape coerced through the act of violence. The woman who was a sex worker had agreed to have sex with the accused at a certain price. However, after meeting with John in his car, he pulled a gun on her and raped her. He was tried and found guilty by the Leicester Crown Court.

For a court to determine cases similar to Tina’s they must first distinguish between involuntarily giving into sex and reluctant submission. In Tina’s case, the jury would translate her compliance as an involuntary one because she was not in a place to disagree with an armed man. Section 75 of the act has detailed a few instances where it can be correct to presume that a victim had sex without consent.11

According to the same section, the use of fear or violence to get the victim to submit is considered rape. Michael pulled out a knife to threaten Tina. It is evident that Tina did not engage in this act out of her own violation. She was forced through the use of a life threatening weapon. In the Sexual Offences Act 2003, the law clearly states that if person B was not a willing participant and persons A knows this but still goes ahead to have sex with her, then he is liable to standing before a court and answering to rape charges.

Despite all these adjustments made in the Act of 2003, the law still remains open to manipulation especially the statutory section 74. Therefore, a prosecutor needs to gather sufficient evidence against the accused. Each of the three men will have to face a court of law to answer to rape charges and depending on the amount of evidence produced, they are likely to face a long prison sentence.

However, if not properly convinced, the jury may decide to throw out the charges against Prince. Michael and David might not be so lucky. Once the prosecutor thoroughly proves that the men violated certain sections of the Sexual Offences Act 2003, then they are highly likely to go to jail.

In summary, listed below is a list of new offences in accordance with the Sexual Offences Act 2003:

  1. A person who ventures into another person’s territory with the intent of committing a sexual assault commits a statutory offence under the 2003 Act.
  2. Causing a person to indulge in drugs that interfere with their senses with the agenda of having sex with them.
  3. Forcing a person to engage in sex without their consent. Meaning there should be mutual understanding which is characterized by power and capacity.
  4. Engaging in any criminal activity with the intention of committing a sexual offence.

The Process of Reporting a Rape Case[8]

Reports state that around 85,000 women are sexually assaulted in England and Wales yearly.12 However, despite these huge figures, only a few of them choose to report the issue. In fact, if figures are anything to go by, only 15% of these women report the crime or even talk about it. Research also shows that majority of rape victims are acquainted with the people who commit this heinous crime. The feeling of shame is the biggest reason why many people do not report rape cases. Rape victims are also known to blame themselves. Sexual offenders tend to taunt their victims and make them feel like they caused the act. In a research conducted by Amnesty International, some people still believe that women are responsible for rape. These people believe that a woman’s clothes, flirtatiousness, and lack of a decisive ‘No’ entice the men to engage in sexual acts. Regardless of the society’s view of a woman and the role she plays in provoking sexual assault, it is clear that the society needs to be educated on this subject. Every man should be held accountable for his behavior, and any woman who finds herself in a situation of sexual harassment is required to report the issue for any action to be taken.

In the case study above, Cindy, Tina, and Whitney did the right thing by contacting the police. This is the first step that any rape victim should undertake. Fortunately, England and Wales do not have a specified timeline in which rape victims are allowed to come forward. If the rape happened recently, then the collection of DNA is necessary.13 In the case of Cindy, Tina and Whitney, if necessary, the men’s DNA can be collected by one of the [9]Sexual Assault Referral Centers. The rape victim is required to provide a detailed statement which is conducted in the police station. After doing a thorough questioning the next step is to contact the suspect. In this case, it is evident that the police interviewed the men because the case study reveals that Michael and David denied the allegations. It will be up to the police to determine whether Prince, Michael, and David should be jailed. Nonetheless, even if they are jailed, they will be released on bail as they wait for the investigation to start.

During the investigation, if the police gather enough evidence to prosecute the three men, then they will go ahead and pass it on to the Crown Prosecution Service. However, if the investigation does not come up with substantial evidence, then the case cannot be pursued further. Once the case makes it into the Crown Prosecution Service, a lawyer is delegated and given the responsibility of reviewing the case and determining the number of charges the offenders are liable to. This lawyer is commonly referred to as the prosecutor. Michael, Prince, and David would, therefore, be advised to hire a lawyer who can help them fight the rape charges.

It is the role of the prosecutor to provide evidence that proves that the women were raped. The prosecutor will base the argument in accordance with the Sexual Offences Act of 2003. David, Prince, and Michael are entitled to a day in court. However, it is up to the prosecutor to provide evidence that will be enough to convince the jury that the three men broke the statutory law.

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Bibliography

Card R and others, Sexual offences (Jordans 2008)

Caringella S, Addressing Rape Reform in Law and Practices (Columbia University Press, 2009)

Hirschel D and others, Criminal Justice in England and the United States (Jones & Bartlett learning 2008)

http://www.legislation.gov.uk/ukpga/2003/42/section/1

Lakhani N, ‘Unreported Rapes: The Silent Shame’ (Independent, 2012)< https://www.independent.co.uk/news/uk/crime/unreported-rapes-the-silent-shame-7561636.html >accessed 4 April 2018

Maier S, Rape, Victims, and Investigations: Experiences and Perception of Law Enforcement Officers Responding to Reported Rapes (Routledge 2014)

Pegg S and Davies A, Sexual offences: Law and Context (Routledge 2016)

Pilcher J, Women in Contemporary Britain: An Introduction (Routledge 2002)

Raphael J, Rape is Rape: How Denial, Distortion, and Victim Blaming are Fueling a Hidden Acquaintance Rape Crisis (Chicago Review Press 2013)

Sanders T, The Oxford Handbook of Sex Offences and Sex Offenders (Oxford University Press 2016)

“Sexual Offences Act 2003” legislation.gov.uk

Scotland, The Public General Statutes Affecting Scotland (William Blackwood and sons 1896)

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Stevenson K and others, Blackstone’s Guide to the Sexual Offences Act 2003 (OUP 2003)

Walby S, Stopping Rape: Towards a Comprehensive Policy (Policy Press 2015)

  1. Richard Card and others, sexual offences (Jordans 2008) 112
  2. 2 Samantha Pegg and Anne Davis, Sexual Offences: Law and context (Routledge 2016)50

    3 ibid

  3. 4”Sexual Offences Act 2003” legislation.gov.uk

    5 Kim Stevenson and others, Blackstone’s Guide to the Sexual Offences Act 2003 (OUP 2003)10

  4. 6 http://www.legislation.gov.uk/ukpga/2003/42/section/1

    7 David Hirschel and others, Criminal Justice in England and the United States (Jones & Bartlett Learning 2008)65

  5. 8 Shana Maier, Rape, Victims, and Investigations: Experiences and Perception of Law Enforcement Officers Reporting to Reported Rapes (Routledge 2014)67
  6. 9 “:Sexual Offences Act 2003” Legislation.gov.uk
  7. 10 Teela Sanders, The Oxford Handbook of Sex Offences and Sex Offenders (OUP 2016)20

    11 Card (n1)

  8. 12 Nina Lakhani, ‘Unreported Rapes: The Silent Shame’ (Independent 2012)https://www.independent.co.uk/news/uk/crime/unreported-rapes-the-silent-shame-7561636 >accessed 4 April 2018
  9. 13 Jane Pilcher, Women in Contemporary Britain: An Introduction (Routledge 2002) 78