Causing or inciting sexual activity with persons who have a mental disorder

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the implications of a Court of Appeal decision that considers the scope of the Sexual Offences Act 2003, section 39, in relation to care workers

17. Sexual offences

The Sexual Offences Act 2003 (SOA 2003) represents the most comprehensive and radical overhaul of the law relating to sexual offences ever undertaken in England and Wales. This chapter deals with non-consensual sexual offences; namely, rape, assault by penetration, sexual assault and intentionally causing someone to engage in sexual activity. It also examines sexual offences against children below 13 years of age, sexual offences against children aged 13 to 16, causing a child to watch a sexual act, arranging or facilitating the commission of a child sex offence, meeting a child following sexual grooming, etc. Finally, the chapter explores offences of abuse of trust, family offences, offences involving mental disorder and other sexual offences such as those surrounding prostitution, pornography and taking indecent photographs of children.

Should Mistaken Consent Still Be Consent? In Defence of an Incremental Understanding of Consent in the Sexual Offences Act 2003

The article considers the recent case of R v Lawrance [2020] EWCA Crim 971 and the way in which the courts are deciding to interpret the concept of freedom under s. 74 of the Sexual Offences Act 2003. It is argued that the case shines a light upon the lacuna present in the Act with regards to deception and consent, identified by academics when the Act was promulgated. It is suggested that the definition of consent lacks clarity as courts have struggled in its application. The resulting ‘so closely connected’ test developed in the cases of R (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] QB 1019 and R v Lawrance [2020] EWCA Crim 971 is not an adequate solution to the problem of deception and consent and potentially muddies the waters further. The article offers a potential solution that might better uphold the ambition of protecting sexual autonomy while adhering to the concept of fair-labelling.

8. Rape and other sexual offences

This chapter deals with sexual offences which criminalise the accused’s invasion of the victim’s sexual—as opposed to simply physical—autonomy. Sexual offences are almost entirely codified within a single statute, the Sexual Offences Act 2003 (SOA 2003). The chapter first considers the relevant provisions of the SOA 2003 with respect to rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent. It then turns to sexual offences against children under 13 and children under 16, as well as status-based and relationship-based sexual offences. The final sections of the chapter outline potential options for legal reform and the application of the offences within the SOA 2003 to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.

A Sexual Harm? HIV Transmission, ‘Biological’ GBH and Ancillary Sentencing Provisions in England and Wales

This article examines the scope and meaning of ‘sexual harm’ within the context of ancillary sentencing orders in England and Wales. It argues that the statutory definition provided in the Sexual Offences Act 2003, recently replicated in the Sentencing Act 2020, does not extend to the transmission of sexually communicable infections and that, subsequently, it is inappropriate for Sexual Harm Prevention Orders to be imposed with the aim of preventing transmissions of sexually transmitted infections (STIs). It suggests that recent case law reinforces this point and that the questions this raises reflect the broader need for further scrutiny of the aims and purposes of sentencing, and criminalisation more generally, in instances of STI transmission.

6. Sexual offences

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses sexual offences, including rape, assault by penetration, sexual assault, and causing sexual activity. Sexual offences are all governed by the Sexual Offences Act 2003. The meaning of consent is key because lack of consent is an element of the actus reus, and the belief about consent is an element of the mens rea. Where the victim is aged 13 or younger, consent is irrelevant and liability as to age is strict.

5. Sexual Offences

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, author commentary, and advice on study skills. This chapter presents sample exam questions on sexual offences and suggested answers. Students should be aware of the key provisions of the Sexual Offences Act 2003, and the presumptions as to consent contained in ss 75 and 76 of the Sexual Offences Act 2003. The concept of reasonable belief is central to this topic. The Act sought to remedy problems in the old law relating to consent and created a new definition of rape, as well as shifting the responsibility for obtaining consent to the defendant in some circumstances.

11. Sexual offences

This chapter examines the law governing sexual offences found in the Sexual Offences Act 2003, focusing on non-consensual offences. Some of the controversies examined include the following: Parliament’s failure to define core elements of the offences, such as ‘consent’ and ‘sexual’ and the attempts by the courts to fill these lacunae; whether a deception perpetrated by the defendant necessarily vitiates the complainant’s consent; and the overly wide breadth of some of the offences.