Sexual Offences

• What is the definition of rape


  • In Sexual Offences Act 2003 S.1
  • A person (A) commits an offence if –
  • He intentionally penetrates the vagina, anus, or mouth of another person (B) with his penis,
  • B does not consent to the penetration, and
  • A does not reasonably believe that B consents
• What is the actus reus for rape?

  • Penetration of the vagina, anus, or mouth of another person
  • Includes surgically reconstructed body parts S79(3)
  • The victim doesn't consent to the penetration
• What are the three statutory provisions concerning consent?

  • General consent
  • Evidential presumptions
  • Conclusive presumptions
• What are conclusive presumptions according to Section 76 SOA 2003?

  • If D performed the relevant act (rape) and one of the circumstances in s.76(2) exists, then it is to be conclusively presumed that the complainant did not consent and that the defendant did not reasonably believe that the victim consented.
  • The relevant circumstances are the following
  • The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act
  • The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant
• Flattery [1877]


  • The defendant told the victim he could cure her of her epilepsy by performing a surgical operation (sex)
  • The victim believed sex was the surgical operation
  • It was rape and found to be deception as to the nature of the act
• Elbekkay [1995]


  • The defendant entered the victim's bedroom while she was half asleep and she assumed he was her boyfriend and they had sex
  • Not an impersonation as he didn't make an attempt at impersonation
• Evidential presumptions - Section 75


  • Use of violence against the C or causing the C to fear that immediate violence would be used against them or another person
  • The C was unlawfully detained at the time of the relevant act
  • The C was asleep or otherwise unconscious
  • Because of the C's physical disability, they wouldn't have been able to communicate their consent
  • The C was administered a substance without their consent which was capable of causing or enabling the C to be stupefied or overpowered at the time of the relevant act
• General Consent - Section 74


  • A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
  • There are considerations of capacity around age and vulnerabilities
  • A Local Authority v JB [2020]
  • In order for an individual with a mental disorder to be able to consent, they need to be able to understand the sexual nature and character of the act of sexual intercourse and the potential outcomes such as pregnancy or health risks
• Capacity to Consent and Intoxication

  • No specific provisions regarding intoxication were included in the 2003 Act
  • Court concluded that drunken consent is still consent in R v Bree [2007]
• Conditional Consent

  • Complainant gave consent on the basis that a condition will be complied with
  • Assange v Swedish Prosecution Authority [2011]
  • The woman agreed to have sex on the condition of him wearing a condom which he ignored so amounted to rape
• What is the mens rea of rape?

  • Intention to penetrate the vagina, anus, or mouth of the victim with their penis
  • D does not reasonably believe that the victim consented to the penetration
  • Objective test
  • Whether a reasonable person would believe that the victim was consenting
  • Whether a reasonable person in the defendant’s circumstances would have that belief
• What is the actus reus for assault by penetration SOA S.2

  • D penetrates the vagina, anus, or mouth with a part of his/her body or anything else
  • The penetration is sexual
  • ‘Sexual’ is defined in s 78 - sexual acts or circumstances
  • The victim does not consent
• What is the mens rea for assault by penetration SOA S.2?

  • Intention to penetrate
  • D doesn’t reasonably believe that the V consents
• What is the actus reus for sexual assault SOA S.3?

  • D touches the victim sexually
  • Touching defined in s.79(8)
  • R v H [2005]
  • The V was walking across a field, the D grabbed her tracksuit bottoms and asked if she wanted to have sex with him
  • Found to be sexual assault
  • V doesn’t consent to the touching
• What is the mens rea for sexual assault SOA 2003 S.3?

  D doesn't reasonably believe that the V consents
• What is the actus reus for causing sexual activity without consent - SOA S.4?

  • Causes another person to engage in an activity which is sexual
  • V doesn’t consent
• What is the mens rea for causing sexual activity without consent - SOA S.4?


  • Intentionally causes the person to engage in the activity
  • D doesn’t reasonably believe that the V consents