Can Touching Always Be Sexual When There is No Sexual Intent?
| DOI | 10.1350/jcla.2008.72.3.501 |
| Date | 01 June 2008 |
| Author | Ilias Bantekas |
| Published date | 01 June 2008 |
| Subject Matter | Article |
Can Touching Always Be
Sexual When There Is No
Sexual Intent?
Ilias Bantekas*
Abstract The objective test introduced by the Sexual Offences Act 2003 as
to the sexual nature of the touching that constitutes sexual assault can
lead to injustices, particularly where the defendant exposed the victim to
nudity without intending—or being reckless—that his or her act assume a
sexual character. To hold otherwise is tantamount to imposing strict
liability, which was not intended by Parliament. The courts must assess
each case on its merits and differentiate all those cases involving an
element of moral involuntariness from those that do not. Equally, the
courts should, where appropriate, permit the defence of necessity where
the defendant did not intend, but was not negligent, as to the sexual
nature of his act.
Keywords Sexual intent; Sexual assault; Necessity; Strict liability;
Moral involuntariness
Section 3 of the 2003 Sexual Offences Act (‘SOA’), which pertains to
sexual assault, prescribes that the offence is completed where the
defendant intentionally touches another person (B) without that per-
son’s consent, the touching is moreover sexual and the defendant does
not reasonably believe that B consents. What amounts to sexual touch-
ing is described in s. 78 of the SOA. According to this provision, touching
or any other 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.
While s. 3 clearly provides that the appropriate mens rea for the touching
is intent, one would presume that either the same mental state, or also
recklessness, would be required in determining the sexual nature of the
touching. Section 78(a) does not require courts to determine ‘sexual’ by
reference to the defendant’s state of mind, but instead imports an
objective standard as to whether the touching may be sexual on account
of the purpose and context of the touching or the body parts touched.
The aim of the provision is certainly not to define what is sexual, but to
establish a framework for discerning whether a particular activity may
amount to sexual where there exists doubt as to its very nature.1The
* Professor of Law and Deputy Head, Brunel Law School; e-mail:
ilias.bantekas@brunel.ac.uk.
1 J. Temkin and A. Ashworth, ‘The Sexual Offences Act 2003: (1) Rape, Sexual
Assaults and the Problems of Consent’ [2004] Crim LR 328 at 331–2.
251The Journal of Criminal Law (2008) 72 JCL 251–258
doi:1350/jcla.2008.72.3.501
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