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The rape is repeated.
The rape has been carefully planned.
The defendant has previous convictions for rape or other serious offences of violent or sexual
kind.
The woman is subjected to further sexual indignities or perversions.
The victim is either very old or very young.
The effect upon the victim, whether physical or mental, is of special seriousness.
Assault by Penetration (s.2)
ACTUS REUS: se ual + penetration of vagina or anus + non-penile + lack of consent
MENS REA: intentional penetration + lack of reasonable belief i V s o se t
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New offence introduced by SOA 2003.
Used to be indecent assault or rape, nothing in between.
AbP created to fill that void.
Can be created by woman or a man.
Carries max life sentence. Elevates non-penal penetration to same level as rape.
Victim MUST NOT have consented. Must be intentional penetration or lack of reasonable belief of
consent. Anal or vaginal. Ca ot e putti g so ethi g i so eo e s outh.
If defendant can show reasonable belief, will be found not guilty.
Tou hi g has to e se ual , defi ed i s.78 SOA 2003.
o R v H 2005: Someone approached in street, touched tracksuit bottoms, asked if fancied a shag.
Tou hi g has to e se ual i atu e. Eg do to e a i atio s ould t ou t. Can include touching
over clothing (as is this case. Although sexual assault case still relevant.) Did amount to sexual
touching, appeal dismissed. Where touching not automatically sexual by its nature judge should
ask whether jury of 12 people would regard the touching of sexual. FIRST CASE OF KIND IN CA
SINCE LEGISLATION (2 YEARS AFTER)
o Cunliffe 2006: D attacked 14yo girl on deserted field by inserting fingers into her anus. Clear
tou hi g as se ual e ause of its atu e .
Coomber 2005: D penetrated anus of sleeping boy with finger. Convicted after footage from his own
digital camera was seized.
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Sexual Assault (s.3)
ACTUS REUS: sexual touching + lack of consent
MENS REA: intentional touching + lack of reasonable belief of V s o se t
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New offence introduced by SOA 2003. Simester and Sullivan 2003: Very welcome, as previous emphasis
on indecency and anachronism and beside the point in a modern law focussed on sexual violence.
Covers all non-penetrative sexual violence (large topic).
Until 1985, harsher sentences if man sexually assaulted man rather than woman. Social attitudes at the
time.
Touching can be with any part of body, for briefest moment of time. Has to be sexual in nature. Whethe
right minded persons would consider the conduct indecent or not. Lo d A k e i R v Court 1989)
R v George 1956: o ked i shoe shop, fetish to tou h people s feet. Co i ted.
R v Court 1989: ot o i ted fo otto spa ki g fetish ould e o ada s look at Lo d Gough s
comments.
Price 2003: st oki g a o a s lower leg.
W 2005: Kissi g V s fa e.
Nika 2005: P essi g od agai st V s utto ks.
Ca e th ough a thi g s.79(8)(c)) such as clothing (R v H 2005).
Consent
- Pre 2003, down to jury decide on consent, no statutory definition.
o Creates uncertainty. Appl o
o se se . Could e thei o
sta da ds; su je ti e.
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