What is in a Sexual Assault?

When the law on sexual offences in England and Wales was replaced and updated in the Sexual Offences Act 2003 there were many reasons for the thinking lawyer to be pleased, one of which was that the offence elements were spelled out for each offence. There were, however, also reasons for the same hypothetical lawyer to be wary: the statutory language was not always as clear, neutral or helpful as the drafters hoped.  Sexual assault – an offence under section 3 of the Act – exemplifies how the apparently clear statutory language in fact fails to provide the legal tools juries need to deal with difficult cases.

Our recent age is dominated by sex. Sex sells products and generates a huge amount of internet traffic, but also underpins the offending we find most horrifying. As a society we sometimes struggle to determine the boundary between the sex we spend a lot of time seeking and the sexual conduct we want to condemn and criminalise. The problem in sexual assault (and indeed throughout the Act) is what ‘sexual’ means in the context of sexual offending.

The Act starts well by providing a test in section 78:

“[an] activity is sexual if a 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.”

This section gives us two categories of conduct: activity which ‘by its nature’ is sexual and activity which may be sexual. It does not tell us what ‘sexual’ means, however. My Concise Oxford Dictionary defines it as ‘of or relating to sex, or the sexes, or the relations between them’; not a moral label but a factual description.

Beyond penile penetration of vagina, anus or mouth, it is hard to see anything that falls into the first category as by its nature sexual and only sexual. The other category, activity which may be sexual, must cover every other activity in the world as there will inevitably be someone, somewhere who finds the activity sexual. The tricky question is whether such activity, in the circumstances of a particular case, is sexual. The Act tells us to consider the circumstances and any person’s purposes in relation to the activity when answering this question, but does not help us with how to use those circumstances and purposes. If the participants considered it sexual, does it matter that others would not? If one party considered it sexual, does it matter if the other did not? Does it matter whether it is the defendant or the complainant who considered it sexual? Does it matter if it was only considered sexual by one of the parties after the incident? All questions for the jury to answer, without any statutory help. And when they answer the question they are applying a descriptive label (‘sexual’) to determine whether a morally laden label (‘sexual offender’) is appropriate for this defendant. By using the apparently neutral term ‘sexual’, the Act fails to confront the incredibly moral, difficult questions about which conduct it covers.

Take the example of a vaginal examination by a medical professional. Done without a medical reason for the sexual gratification of the professional, it is not difficult to see that this would be a sexual assault. What about if there is a medical justification, but the professional happens to find the examination sexually arousing? A more difficult question. What about where there is a medical purpose and the professional seeks no sexual gratification, but the examination is non-consensual and experienced by the complainant as sexual, perhaps due to previous sexual abuse? Would the moral label of ‘sex offender’ applied to the convicted professional in the last example be accurate and fair? Would it, conversely, be accurate and fair to label such conduct as a simple assault (a non-consensual touch)? The real problem is in seeing activity as simply ‘sexual’ or ‘not sexual’ and treating that as an easy categorisation; arguably, neither label fits our final example. The superficially neutral and simple language in the Act does not help to answer the difficult and far from neutral questions which arise in cases like the final example.

Catarina Sjölin, Circuit Judge in Crime on the Midland Circuit