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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

The Provisions

Part 1 – Introductory
Article 2: Interpretation

7.25.Article 2 gives a number of definitions relevant to offences in the Order. Paragraph (5) is needed so that where, for example, a person consents at the time of entry to penetration, but then withdraws his consent and the penetration continues, the person penetrating may be guilty of rape or assault by penetration.

Article 3: “Consent”

7.26.Article 3 defines “consent” for the purposes of this Order. This definition is relevant to many Articles in the Order including, for example, the offence of rape (Article 5). The Article refers to a person’s capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder.

Article 4: “Sexual”

7.27.Article 4 defines “sexual” for the purposes of this Order. This definition is relevant to many of the offences in the Order. For example, Article 6(1)(b) refers to penetration which is sexual and Article 7(1)(b) refers to touching which is sexual.

7.28.There are two alternative limbs to the definition of “sexual” in Article 4. Sub-paragraph (a) covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse. Sub-paragraph (b) covers activity that the reasonable person would consider, because of its nature, may or may not be sexual depending on the circumstances or the intentions of the person carrying it out, or both: for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason. Where the activity is, for example, oral sex, it seems likely that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (e.g. a doctor’s surgery) and the purpose of any of the participants (if the doctor’s purpose is medical, the activity will not be sexual; if the doctor’s purpose is sexual, the activity also is likely to be sexual).

7.29.If, from looking at the nature of the activity, it would not appear to the reasonable person that the activity might be sexual, the activity does not meet the test in either sub-paragraph (a) or (b), even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes do not fall within the definition of sexual activity.

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