The Provisions
Part 2 – Non-consensual sexual offences
Rape
Article 5: Rape
7.30.Article 5 makes it an offence for a person (A) intentionally to penetrate with his penis the vagina, anus or mouth of another person (B) without that person's consent if A does not reasonably believe that B consents. Paragraph (2) provides that whether a belief in consent is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. This and the offence in Article 12 are the only offences that can only be committed by a male, because they relate to penile penetration. Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent. The Article also abolishes the common law offence of rape.
Assault
Article 6: Assault by penetration
7.31.Article 6 covers the situation where a person (A) intentionally penetrates the vagina or anus of another person (B). The offence is committed where the penetration is by a part of A's body (for example, a finger) or anything else, (for example, a bottle); where the penetration is sexual (as defined in Article 4, so that it excludes, for example, intimate searches and medical procedures; where B does not consent to the penetration; and where A does not reasonably believe that B consents. What is said in the note to Article 5 about whether a belief in consent is reasonable also applies here. This and all subsequent offences in the Order save the offence at Article 12 can be committed by a male or female, against a male or female. Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent.
Article 7: Sexual assault
7.32.Article 7 makes it an offence for a person (A) intentionally to touch sexually another person (B) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to Article 5 about whether a belief in consent is reasonable also applies here. The meaning of "touching" is explained at Article 2(11); "sexual" is defined at Article 4. The effect of these sections is that the offence covers a wide range of behaviour including, for example, rubbing up against someone's private parts through the person's clothes for sexual gratification. Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent.
Causing sexual activity without consent
Article 8: Causing a person to engage in sexual activity without consent
7.33.Article 8 makes it an offence for a person (A) intentionally to cause another person (B) to engage in sexual activity (as defined in Article 4) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to Article 5 about whether a belief in consent is reasonable also applies here. A may cause B to engage in sexual activity with A (for example, a woman who compels a man to penetrate her); on B himself (for example, where one person forces someone else to masturbate himself); or with another person (for example, where one person makes someone else masturbate a third person). Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent.
Article 9: Evidential presumptions about consent
7.34.This Article applies to the offences of rape (Article 5), assault by penetration (Article 6), sexual assault (Article 7) and causing a person to engage in sexual activity without consent (Article 8). The Article provides for presumptions that may be challenged by the defendant. The presumptions arise in the circumstances described in paragraph (2). The difference between paragraphs (a) and (b) of paragraph (2) is that paragraph (a) covers violence and threats of violence used against the complainant whereas paragraph (b) covers violence and threats of violence used against a person other than the complainant. The violence or threat must occur either at the time of the relevant act or immediately before it began.
7.35.The effect of paragraph (3) is that where, for example, the relevant act for which the person is being prosecuted is penetration, but the penetration is the culmination of a series of sexual activities, then if the violence or threat occurred immediately before the first sexual activity (as opposed to before the penetration), the presumptions still arise.
7.36.Where the prosecution proves that the defendant did a relevant act (as defined in Article 11), that the circumstances described in paragraph (2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented. In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. In practice (although this is not mentioned in the Order) the evidence produced may be from evidence that the defendant himself gives in the witness box, or from evidence given on his behalf by a defence witness, or resulting from evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, he will so direct; if not, he will direct the jury to find the defendant guilty.
Article 10: Conclusive presumptions about consent
7.37.This Article creates conclusive presumptions about lack of consent and the absence of belief in consent in situations where the defendant deceived the complainant into sexual activity. Paragraph (2)(a) covers the situation where, for example, the defendant intentionally tells the complainant that digital penetration of her vagina is necessary for medical reasons when in fact it is for his sexual gratification. Paragraph (2)(b) covers the situation where, for example, the defendant impersonates the complainant's partner and thereby causes the complainant to consent to the relevant act. Where the prosecution prove that the defendant did a relevant act (as defined in Article 11) and that any of the circumstances described in paragraph (2) existed, it is conclusively presumed that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act. The defendant will therefore be convicted.
Article 11: Articles 9 and 10: relevant acts
7.38.Article 11 defines the relevant acts to which the provisions in Articles 9 and 10 apply.
