Informal Session on
Sexual Offences (NI) Order 2008
Monday 9th March 2009
• Sexual Offences (NI) Order 2008
• Commencement – 2nd February 2009
• Sexual Offences Act 2003
•Transitional arrangements
•Problems
offences
with
date
straddling
•Making indecent digital images
created legally before commencement
• Rape (Article 5)
• Intentional penile penetration of the
vagina, anus or mouth
• Victim does not consent
• Defendant does not reasonably believe
that the victim is consenting
• Sexual Penetration (Article 6)
• Intentional penetration of the vagina or
anus by a body part or anything else
• Penetration is sexual
• Victim does not consent
• Defendant does not reasonably believe
that the victim is consenting
•
•
•
•
•
Sexual Assault (Article 7)
Intentional touching of the victim
Touching is sexual
Victim does not consent
Defendant does not reasonably believe
that the victim is consenting
• Causing Sexual Activity (Article 8)
• Intentionally causing another to
engage in an activity
• Activity is sexual
• Victim does not consent
• Defendant does not reasonably
believe that the victim is consenting
•Victims under 13
•R –v- G [2008] UKHL 37
•“Every male has a choice about where he puts his
penis. It may be difficult for him to restrain himself
when aroused but he has a choice.
There is
nothing unjust or irrational about a law which says
that if he chooses to put his penis inside a child who
turns out to be under 13 he has committed an
offence.”
Lady Hale at [46]
• Touching (Article 2(11))
• (a) with any part of the body,
(b) with anything else,
(c) through anything, and in
particular includes touching
amounting to penetration.
• R –v- H [2005] EWCA Crim 149
•Intentional Act
•R –v- Heard [2007] EWCA Crim 125
•“a drunken intent is still an intent”
•“a drunken accident is still an
accident”
• Sexual Act (Article 2(8))
• - “[The act] is sexual if a reasonable person would consider
that – (a) whatever its circumstances or any person’s purpose
in relation to it, it is because of its nature sexual, or (b)
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”
• R –v- H [2005] EWCA Crim 149
• Would you, as 12 reasonable people, consider that because
of its nature the touching could be sexual? If no, they must
acquit.
• If yes, secondly, would you, as 12 reasonable people, in view
of the circumstances and/or the purpose of any person in
relation to the touching, consider that the touching was in fact
sexual.
• In answering the first question, the circumstances pertaining
before and after the touching must not be taken into
consideration.
• Consent (Articles 3, 9 and 10)
• Article 3 - “For the purposes of this Order, a person
consents if he or she agrees by choice and has the
freedom and capacity to make that choice.”
• Hallett LJ in R –v- H [2007] EWCA Crim 2056 at
[34] – “Issues of consent and capacity to consent to
intercourse …. should normally be left to the jury to
decide.”
• Article 9 – If any of the 6 circumstances set out in
9(2) existed, and the defendant knew they existed,
then the victim is to be taken not to have consented
to the relevant act, unless sufficient evidence is
adduced to raise an issue as to whether the
victim consented. There is a similar presumption
in respect of the defendant’s belief about consent.
• Any person was using violence at the time
against the victim, or the victim was in fear of
violence
• Any person was causing the victim to fear that
violence would be used against any person
• The victim was unlawfully detained
• The victim was asleep or unconscious
• Because of a physical disability the victim would
not have been able to communicate with the
defendant
• The defendant had administered to the victim
without his/her consent, a substance causing the
victim to be ‘stupefied or overpowered’
• Article 10 – conclusive presumptions
• the defendant intentionally deceived
the victim as to the nature, or the
purpose of the act; or
• the defendant intentionally induced
the complainant to consent by
impersonating a person known
personally to the victim.
• R –v- Taran [2006] EWCA Crim 1498
• “It is not the task of a judge to read to
the jury an abstract lecture on the law
but to explain to them in simple terms
those parts of the law that arise for
application in the case they were
trying.”
• Intoxication – Defendant
• May the defendant have genuinely believed the
complainant was consenting? Here the jury are
entitled to take into account any evidence of the
defendant’s intoxication. If the jury are sure that
he had no such belief, then this element is
proved. If they consider that he may have had
such a belief, then they should consider (b);
• Was the belief reasonable in all the
circumstances?
Here intoxication is not
relevant and the jury must consider whether the
belief would have been reasonable for a sober
man in all the circumstances.
• Victim – Intoxication
• R –v- Bree [2007] EWCA Crim 804
• If through drink…the complainant has temporarily
lost her capacity whether to have intercourse…she
is not consenting.
• However, where the complainant has voluntarily
consumed even substantial quantities of alcohol, but
nevertheless remains capable of choosing whether
or not to have intercourse, and in drink agrees to do
so, this would not be rape.
• We should perhaps underline that, as a matter of
practical reality, capacity to consent may well
evaporate well before a complainant becomes
unconscious.