Questions: (essay)

What were the main changes made by the sexual act 2003 on the law of rape?
Discuss if these changes improve the law or not.

Brief Background and Overview

The Sexual Offences Act 2003 (SOA 2003) came into force on 1 May 2004 and repealed most
sections of the Sexual Offences Act 1956. It represented ‘a large-scale revision of the law of
sexual offences.’[1] The Act applies to England and Wales only. Scotland is covered by the
Sexual Offences (Scotland) Act 2009.

Political sociological context

Since the introduction of the previous version of the SOA in 1956, the societal development
brought not only the progress but also new challenges such as growing concerns over child
sexual abuse[2] and new forms of sexual abuse, such as voyeurism.[3] These offences were
not reflected in the SOA 1956 and were either not punishable at all or covered by other laws.
In the words of the Home Office, the older law on sexual offences was ‘archaic, incoherent
and discriminatory’[4] and ‘simply a consolidation of nineteenth-century law.’[5]

Legal Context
The older law arguably lacked clarity: for example, the definition of consent was absent from
the Act and was governed by common law and given the ‘ordinary meaning.’[6] In the years
preceding the adoption of the SOA 2003, certain actions had been already taken by the
Government to ‘improve the arrangements to protect the public from sex offenders.’[7]
These included the introduction of the sex offender restraining orders and the establishment
of the National Crime Squad.[8] However those measures were fragmented and not sufficient,
as ‘the number of persons found guilty of rape in comparison to the total number of offences
reported had fallen from 25% in 1985 to 7% in 2000.’[9] It was also believed that the lower
penalties for sex offenders did not reflect the ‘long term harm’[10] caused by their crimes.
The SOA 2003 was introduced with the aim of making a ‘new provision about sexual offences,
their prevention and the protection of children from harm from other sexual acts, and for
connected purposes.’[11]

What main changes did it make to the law?

The SAO 2003 has redefined and clarified a few terms as well as introduced new types of
sexual offences.

New Terms and Clarifications

First, the definition of rape has been widened to include penetration to ‘mouth of another
person’[12] (along with vagina and anus already included in SOA 1956).[13] The new Act also
made it clear that a ‘surgically constructed’[14] vagina was included within the definition of
vagina. The Act therefore reflected the realities of the modern-day world by expanding its
powers to ‘male to female’ transsexual people.[15]

Second, the Act provided the definition of consent which includes ‘the freedom and capacity
to make’[16] such consent. The burden of proof provisions have been altered as well. Section
75 introduced a number of ‘evidential presumptions’ with regards to the consent.[17] It
defined circumstances under which the consent was presumed to not have been given. The
burden of proof thus shifted from the complainant to the defendant.[18] Such circumstances
included for example, violence or threat of violence preceding the act,[19] and the
complainant being asleep or otherwise unconscious [20]. Section 76 further provided
circumstances for ‘conclusive presumptions about consent’ including the deceit of the ‘nature
or purpose of relevant act’ [21] or impersonation of a person previously known to the
complainant.[22]

Third, the Act introduced the extraterritorial application by stipulating that the UK citizens
that committed an act that would amount to sexual offence under the SOA 2003 outside the
UK, could still be prosecuted as if they had committed it on the UK territory.[23]

New Offences

The SOA 2003 has also created new types of sexual offences that have not been previously
included, such as the assault by penetration,[24] non-consensual voyeurism,[25] sexual
penetration of a corpse[26] and others. The assault by penetration is different from rape in
that the latter required the defendant’s penis to be penetrated, while the former can be done
with ‘a part of a body or anything else.’[27] Voyeurism has traditionally been seen as nuisance
and a public decency matter and only later considered a ‘sexual perversion or deviation.’[28]
The inclusion of the sexual penetration of a corpse was subject to a heated debate in the
House of Lords.[29] While being regarded as a minor offence with a maximum imprisonment
term of 2 years,[30] it does not require penetration into vagina, anus, or mouth but rather –
into any part of the corpse.

The Act offered stronger protection to children. It changed the definition of ‘child’ by
amending the age from under 16 to under 18.[31]It created new offences related to child
prostitution[32] and making indecent photographs of children,[33] sexual activities with a
child family member,[34]and ‘meeting a child following sexual grooming.’[35]The new types
of offences against children included the abuse of the position of trust, which include sexual
activity with a child[36] or in his presence[37] as well as ‘causing a child to watch a sexual
act’[38].

The Act also introduced provisions further related to prostitution, including ‘causing or
inciting prostitution for gain’[39] and ‘keeping a brothel.’[40] The new offences introduced
also included sex trafficking related acts into, within, and out of the UK.[41]

Finally, it is important to note that homosexual sex has been removed by omitting the
previous Act’s sections on ‘buggery’ and ‘indecency between men.’[42]

Key Sections

The Act consisted of 3 Parts. Part 1 set out the range of sexual offences. It covered the rape,
assault by penetration, causing sexual activity without consent, sexual assault and causing a
person to engage in sexual activity without consent. It also covered child sex offences and
offences involving an abuse of a position of trust towards a child. It separated the offences
committed against children under 13, familial child sex offences, and offences involving the
abuse of the position of trust. It included provisions on sexual offences against people with
mental disorders, prostitution, trafficking, and preparatory offences.

Part 2 regulated the notification requirements for the persons convicted of a sex offence
crime (or found not guilty by the way of insanity or is disabled but charged with such an
offence)[43] and formerly subject to the Sex Offenders Act 2007.[44] It prescribed notification
periods, requirements, and methods.

Part 3 contained some general provisions including service courts, minor and consequential
amendments, and commencement provisions.