Mental Element of Sexual Assault

Just as the vexed question of sexual intent has troubled medical health tribunals, so too it troubles the criminal courts.

Today the Court of Appeal ruled on the mental element of the offence of sexual assault on a reference by the Attorney General following an acquittal of the defendant for sexual assault contrary to section 3 of the Sexual Offences Act (SOA) 2003[i]: Attorney General’s Reference (No 1 of 2020) [2020] EWCA Crim 1665 Fulford LJ, VP, Holgate J and Sir Roderick Evans.

There was also an acquittal of the alternative offence of common assault.

The defendant, who appeared to be intoxicated, and whilst travelling with his two nephews on a train, lowered himself onto the seat next to the complainant (a woman much younger in age) and almost sat on her lap.

He tapped her arm and, when she turned towards him, grabbed her face and kissed her with a ‘sloppy’ and ‘forceful’ kiss full on the lips.

It was conceded by the defence that the requirements of section 3(1) (a), (c) and (d) SOA 2003 were met.

The sole live issue for the jury was whether the touching was sexual.  The parties agreed that as a general proposition a kiss on the lips was not necessarily sexual within the meaning of section 78[ii](a), but that it could be sexual within section 78(b).

The question posed by the Attorney General was:  Is it necessary for the prosecution to prove, as an element of the offence of sexual assault, not only that the offender intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but that the offender intended his touching of that person to be sexual?

On a plain reading of the relevant sections of the Act (see footnotes), the answer would appear to be clear, but the word sexual is, sadly, one of those few magic words that tends to throw the lower courts and tribunals into a spin.

The summary of Hughes LJ in R v Heard [2007] EWCA Crim 125; [2008] QB 43; [2007] 1 Cr App R 37 strongly supported the contention that there was no requirement for the prosecution to prove that the defendant intended the touching to be sexual, given the absence of any such suggestion.

The Court disagreed with the conclusions of the editors on this issue in the supplement to Rook and Ward, the starting point for which was the reliance placed by the editors and by the judge on the judgment in R v JAS [2015] EWCA Crim 2254.

The appellant’s case there was that his purpose was educational and not for sexual gratification.  So, the jury would have had to be sure that what occurred was, as considered by a reasonable person, potentially sexual and it was rendered sexual because of the purpose of the accused.

The answer to the question posed by the Attorney General was that it was not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the offender not only intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but also that the offender additionally intended his touching of that person to be sexual.

Instead, under section 78(b) the accused’s purpose in relation to the activity may be relevant if a reasonable person would consider that, given the nature of the activity, it may be sexual and, because of the accused’s purpose, it was sexual.

Cases Cited in Judgment:

Offence contrary to Section 3 SOA 2003 – Mens Rea

R v H [2005] EWCA Crim 732; [2005] 1 WLR 2005;
R v Heard [2007] EWCA Crim 125; [2008] QB 43

Presumption of Mens Rea in the Interpretation of Criminal Statutes

R v Lane and another [2018] UKSC 36; [2018] 1 WLR 3647; [2018] 2 Cr App R 35

[i] Section 3 Sexual Offences Act 2003 provides:

  Sexual Assault

3. (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

(d) A does not reasonably believe that B consents

[ii] Section 78 SOA provides:

  Sexual

  For the purposes of this Part (except sections 15A and 71, penetration, touching or any other activity is sexual  if a   reasonable person would consider that –

• Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
• Because of its nature it may be sexual and both because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.