Sexual Assault defences

What are the Defences to Sexual Assault?

Sexual offences always require a high degree of skill and tactical awareness to defend. These are cases where the state has made it easy for victims to make allegations but such cases are often tricky to defend as it often comes down to one person’s word against another’s. There has recently been a rise in the number of sexual assault allegations made, police report a 9% annual increase between 2018 and 2019 and sexual assault allegations amongst students rose tenfold from 2014 to 2018. The impact of such a case can affect an individual’s life profoundly from the moment they are charged and it is important to seek specialist advice when faced with such an allegation.

This article will set out the definition of sexual assault and available defences.

What is Sexual Assault? 

The offence of sexual assault is set out at section 3 (1) of the Sexual Offences Act 2003:

“(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.”

Section 1(2) provides limited guidance in relation to what constitutes reasonableness:

“Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps which [the defendant] has taken to ascertain whether [the complainant] consents.”

Sexual assault is an 'either way offence' and as such may be heard either in the Magistrates Court or the Crown Court; the maximum sentence upon conviction is 10 years imprisonment. 

Did it happen?

The most common defence to sexual assault allegations is that the events described by the complainant in the case did not happen at all. The burden of proving the case rests firmly on the prosecution and they must persuade the jury or Magistrates so that they are ‘sure’ or ‘beyond reasonable doubt’. Where it is one person’s word against another’s a great many factors come into play- the surrounding circumstances, the character of the defendant, any objective evidence, when the complaint was made, why the complaint was made etc. It is essential that evidence is gathered and preserved by the defence team as soon as possible and if an allegation is made specialist representation should be sought as soon as possible.

What is Sexual Touching?

Sexual Touching an ‘element’ or constituent part of the offence and must be proved by the prosecution; it is defined in section 79(8):

Touching includes touching— (a) with any part of the body, (b) with anything else, (c) through anything, and in particular includes touching amounting to penetration.

The terms ‘sexual’ and ‘touching’ make this offence very broad. This could encompass stroking, kissing or groping but also includes touching with any part of the body - or with anything else - and can be through clothing.

Section 78 of the Sexual Offences Act 2003 provides:

“For the purposes of this part (except section 71 ), penetration, touching or any other activity is sexual if the 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.”

In R v H (Karl Anthony) [2005] 2 Cr. App. R. 9, the Court of Appeal held that the touching of an individual's clothing was sufficient to amount to sexual touching. In this case, the defendant had pulled the complainant’s tracksuit bottoms in order to pull her towards him after asking whether she wanted to have sex with him.

The test for whether touching can be considered sexual was clarified in R v Grout [2011] EWCA Crim 299; [2011] 1 Cr. App. R. 38. A three-stage approach should be taken when considering touching - each of these questions should be asked by reference to a ‘reasonable person’:

1. Was the ‘activity’ sexual in nature, regardless of the circumstances surrounding it? If the answer is yes then there is no need to go any further. If the answer is no, the questions below must be considered.
2. Would a reasonable person consider that the relevant ‘activity’, because of its nature may be sexual. If the answer to this question depends on the circumstances then the third question below becomes relevant.
3. Was the ‘activity’ sexual because of its circumstances or the purpose of any person in relation to it (or both)?

In other words, when touching is not obviously or automatically sexual in its nature, it is possible to decide whether it was sexual by considering the circumstances in which it was done and the purpose of the touching.

Consent

Consent is a common defence in Sexual Assault cases. If a complainant consents to the touching, then the defendant is not guilty of the offence. The sexual touching must be proved by the prosecution to be without consent. Often consent issues arise between persons in relationships or where the complainant is alleged to have regretted the sexual activity and later concocted an allegation of assault.

Consent is defined as when a person ‘agrees by choice, and has the freedom and capacity to make that choice’. One available defence would be that A did reasonably believe that B consented to the sexual touching. Consent may be given to one sort of sexual activity but not another, and may also be withdrawn at any time during sexual activity and each time it occurs.

Capacity

Capacity is assessed on the balance of probabilities. A person is assumed to have capacity unless it is established that they lack it - this means that when capacity is an issue in criminal proceedings, the burden of proving incapacity falls on the party raising it as an issue. This is often what the prosecution to do. The prosecution must therefore make the jury sure that the complainant did not have the capacity to consent.

Sections 30(2)(a), 31(2)(a), 32(2)(a) and 33(2)(a) of the 2003 Act create “offences against persons with mental disorder impeding choice” and express a lack of capacity as follows: “he lacks the capacity to choose … (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason) …”.

Intoxication- can drunkenness be a defence to Sexual Assault?

In short, the drunkenness of the defendant cannot be a defence to an allegation of sexual assault. It was held in the case of R v Heard (Lee) [2007] EWCA Crim 125; [2008] Q.B. 43; [2007] 3 W.L.R. 475 that a drunken intent was still intent and the appellant’s behaviour before and after committing the touching made it clear that it had been deliberate. The Court held that being voluntarily intoxicated could not be relied upon to negate one’s intent and the man’s drunkenness had not destroyed the intentional character of his touching.

Conclusion

Offences of sexual assault require a large degree of skill and tactical awareness to defend. Each case must be taken on its own factual circumstances and generic advice is very difficult to give. What is clear is that a sexual assault conviction and the potential to be placed on the Sexual Offender’s register is a serious and life changing event for anyone. As such if such an allegation is made it is essential that advice from a specialist in the area is sought as soon as possible. Quentin Hunt is a criminal Barrister with over 20 years experience in dealing with a wide range of sexual assault cases. If you find yourself facing such an allegation you may contact Quentin for a free, no obligation telephone conversation about your case.