However, while the new law may be seen to have achieved many of the stated aims of the Law Commission, as outlined briefly above, there are some major reservations remaining with the way the Act was drafted. Quite apart from what follows, the very nature of the Act, in introducing so many offences, some of which may be very difficult to police, has led to some commentators criticising the so-called over-criminalisation of certain activities and of unnecessary state interference in domestic life. However, although this has been deemed unfair, the legislation is designed to protect the most vulnerable, those who are unable to protect themselves, so it is difficult to see how this objection can be sustained.
The crime of rape is redefined and is no longer limited to penile penetration; this closes a loophole in the original law, and the controversial defence of belief in consent (CASE) is removed to be replaced with a number of rebuttable presumptions about whether consent was genuine. This removes the onus from the victim to prove that consent was not present, but is inconsistent with the maxim that the defendant is innocent. However, with the seriousness of the offence in question and the relative lack of success in prosecuting such offences, this provision (which will apply in a relative minority of cases) seems, in balance, reasonable.
A significant concern with the new legislation is the creation of the new offence of sexual assault, replacing that of indecent assault. The previous offence was defined under section 52 (a) as an act involving the touching of the genitals for the purposes of gaining sexual gratification of the offender. This included relatively minor acts, such as drunkenly fondling a co-worker’s breasts at the office Christmas party, and as such was punishable at the discretion of the court with a maximum penalty of two years’ imprisonment. The new Act replaces this with a maximum sentence of ten years’ under section three, which may be desirable for offences of a more serious nature, which perhaps fall just short of rape itself (but are covered better by s. 2). The offence under s. 2 is that of assault by penetration; this allows women to be the defendant, and in many ways is the equivalent of section one for female defendants, although also catches instances where an object was used to commit the “rape”. However, a concern is that neither of these new offences appear to require an element of mens rea. Also, both offences turn on the concept of the act being “sexual”, as defined under s. 78; this leads to cases such as Tabasum (2000), being decided in the same way: this is not necessarily desirable, as the women concerned in the above case would certainly have felt that an offence had been committed, although there is nothing here to convict the defendant with. Although it is desirable that the more serious offence under section two should be punishable more severely, it seems unfair that the more minor offence can be punished so harshly, at the court’s discretion; giving this measure of flexibility to the court may produce varying results, which is fundamentally unfair. It also raises the question of fair labelling, as the renaming of a well known offence, with substantially different punishment is at odds with the policy of fair trial and may raise human rights arguments, that the law has changed significantly, with very little public fanfare, so as to make defendants guilty of a more serious offence. The reasoning behind the abolition of the crime of indecent assault must be questioned, as the new offence seems too wide, covering very minor offences to those just short of rape itself, with little guidance of the sentence to be imposed in each case.
Another major incoherency occurs in the familial offences and those dealing with minors. Under s. 5, anyone under the age of thirteen is deemed to be too young to consent to sexual relations; however, what of the twelve year old “consenting” couple? Potentially, the male partner is liable to life imprisonment for rape if they engage in a sexual relationship. An offence under this section appears to be one of strict liability, though when this concern was raised in Parliament the Home Secretary stated that in practice consenting children would not be prosecuted; this is incoherent as we must question why the provision was put in, or an exception was not written into the law. Who has the discretion to decide who is prosecuted? This again may lead to inconsistency, particularly where the child is unwilling to testify, even against an older defendant, as she may not be where she believes the relationship is genuine; it would clearly be easier in these cases to use the “discretion” in this instance to quietly drop the case rather than risk a failed prosecution, and may lead to defendants who need to be pursued getting off.
Furthermore, where both the parties are under the age of sixteen, which one is liable of the offence? What about where one is under thirteen and the other under sixteen? The provisions in s. 5-8 criminalise the experimental sexual behaviour of children and young teenagers, and has been criticised as being a further example of the government interfering with the autonomy of free thinking people. It is clear that children need to be protected, sometimes even from themselves, but it is debatable whether this legislation is the right way to do it. It should also be noted here that “sexual touching” would appear to include kissing: is it remotely proportionate, or indeed a social need, to impose criminal liability on consenting children who merely share a kiss? This too raises potential human rights issues.
There is also an overlap between the offences set out in s. 5-8 and those in s. 9-10. The latter sections create offences which cover the same area as the former: for instance id a defendant has sex with a child under the age of thirteen he is guilty of rape of a child under s. 5 and sexual activity with a child under s. 9. There are vastly differing legal responses to the different sections. Again, who exercises the discretion on which charge to bring against a defendant? Until some cases are brought under the new legislation it is difficult to see how this overlap will work in practice, or how extensive the overlap is.
A further inconsistency appears in the familial situation. Under section 25, the sexual activity with a child of the family is outlawed. However, the maximum penalty for this offence is fourteen years’ imprisonment. If we are to take that, as under section five, children under the age of thirteen are unable to consent to sexual relationships, it follows that children of the family are also unable to consent to having relationships with for instance, their father or brother. However, due to the wording of the statute, it seems that there is also a conflict between section one and section 25 as there is nothing to say which section takes precedent over the other. Again, this raises the issue of who decides under which provision a defender ought to be prosecuted, and perhaps should have been considered by the drafters.
In conclusion, the Sexual Offences Act 2003 is consistent and coherent in its aims, as it reflects other ongoing legislation and governmental social policy goals, which are largely supported by the public as a whole. However, it is both inconsistent and incoherent in its application of these aims, in the wording and conflict between provisions. This has the potential to render the legislation unfair, though it is not in its stated goals.
In its report, “Setting the Boundaries” (1999)
