Student Number: 14006073
Module Name and Number: Criminal Law UJUTD3-30-1
Coursework question: Prior to the enactment of the Sexual Offences Act 2003, the law on sexual offences was considered to be a “patchwork quilt of provisions ancient and modern that works because people make it do so, not because there is a coherence and structure.” (Setting the Boundaries: Reforming the Law on Sex Offences, Home Office, iii, 2000). Critically analyse whether the Sexual Offences Act 2003 has remedied these criticisms. Word count: 1476 words.
The laws concerning sexual offences have always attracted criticism upon them because the legislative language with which were drafted were often considered to be inconsistent and gender-biased. For instance, the absence of the word ‘consent’ in the Sexual Offences Act 1956 and the unclear definition of rape, according to which ‘it is a felony for a men to rape a woman’1, with no other details being specified, persuaded the judges to not believe that a woman had been raped in the past, unless violence existed. Also, the Government considered that the existing law on sexual offences was ‘archaic, incoherent and discriminatory’ and that it failed to reflect ‘changes in society and social attitudes’, as stated in its White Paper of 20022. The Sexual Offences Act 2003 mentions and defines consent clearly as ‘agreement by choice’ made freely by a person with capacity3. However, legal resources, such as: relevant case law, legislation and secondary data analysis will be the methodology used in order to establish whether or not the Sexual offences Act 2003 has eliminated the pre-existing criticism. The Sexual Offences Act 1956 was the first piece of legislation that mentioned rape, but in a very unclear manner by referring to the criminal conduct as ‘a man who induces a married woman to have sexual intercourse with him by impersonating her husband’4. At that point, the consent was still missing from the definition and the law in force was far from being fair, because whether or not the rape had taken place was a mission for the jury to decide based on the existing evidence. Furthermore, rape within marriage has been a crime since 1991 only, and the general idea of what consent was in a marriage should have been clarified since the case of Clarence5, in which the wife consented to sex with her husband, but not to the sexual disease that she automatically received during the intercourse, so according to the SOA 1956 her consent was held to be valid, as to sex and infection. Another major problem was with the indecent assault because it was very broad and included offences from a low level of crime, such as the case of Tabassum, where the deception was used to stroke women’s breasts6, to a significantly high criminal conduct such as forced oral sex as in the case of McAllister7 or the penetration of vagina with a hand as it was the case of Boyea8. The next eloquent piece of statue is the Sexual Offences Amendment Act 1976, in which the requirement of an honest belief appeared for the first time9. Hence, the consent is mentioned but still not defined, and a defence based only on honest belief and not necessarily a reasonable belief did not help in the case of DPP v Morgan, in which the husband invited three men to have sex with his wife and told them not to stop regardless of her reactions10. He was found guilty of rape and ‘as every lawyer knows, consent in any legal context may in principle be vitiated by force, fraud or mistake’11. The law fiercely needed a reform because there was no legal definition of consent, the lack of gender neutrality was problematic, the defence of honest belief in consent had to be changed and the law on indecent assault covered a wide range of offences that had to be recategorised12. The Sexual Offences Act 2003 came into force on the 1st of May 2004 and brought major changes to the actus reus and the means rea for rape. The actus reus consists of three important...
Bibliography: Clarence (1888) 22 QBD 23.
R v Higson (1984) 6 Cr App R (S) 20.
Loveless J, Criminal Law (4th, Oxford University Press, Oxford 2014)
Setting the Boundaries: Reforming the Law of Sex Offences, Home Office, iii, 2000.
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