Faulkner v Talbot
| Jurisdiction | England & Wales |
| Date | 1981 |
| Year | 1981 |
| Court | Divisional Court |
Crime - Sexual offences - Indecent assault - Boy under 16 - Woman touching boy's penis - Whether act prior to sexual intercourse constituting indecent assault -
The Sexual Offences Act 1956 provides by section 15:
“(1) It is an offence for a person to make an indecent assault on a man. (2) A boy under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.”
A boy, aged 14 years, who had left his parents and was living at the defendant's home, watched a horror film with the defendant and said that he was frightened. The defendant invited the boy to sleep with her if he wished to do so, which he did. When they were in bed the defendant invited the boy to have sexual intercourse with her. The boy resisted the defendant's attempts to put her hand on his penis, whereupon she pulled the boy on top of her, took hold of his penis and placed it inside her vagina. The defendant was charged with indecent assault on a boy aged 14 years contrary to section 15 (1) of the Sexual Offences Act 1956. The justices convicted the defendant and she appealed to the Crown Court. That court, in dismissing her appeal, rejected her contention that, since there was no specific provision making the act of sexual intercourse between a woman and a boy under 16 an offence, the touching of the boy as a prelude to sexual intercourse could not be an indecent assault under section 15 of the Act.
On appeal by the defendant:—
Held, dismissing the appeal, that since the defendant had intentionally touched the boy's penis that touching was an assault and by its nature indecent; that the boy, being under the age of 16, could not consent to her action by reason of section 15 (2) of the Act of 1956 so that the touching was without lawful excuse and, accordingly, all the necessary ingredients of the offence of indecent assault pursuant to section 15 (1) were present (post, pp. 1534C–H, 1535G–1536A).
The following cases are referred to in the judgment:
Director of Public Prosecutions v. Rogers [
Fairclough v. Whipp [
Rex v. Hare [
Reg. v. Mason (
Reg. v. McCormack [
Reg. v. Sutton (Terence) [
Reg. v. Upward (unreported), October 7, 1976, Wien J.
The following additional case was cited in argument:
Rex v. Burrows (Note) [
CASE STATED by Stafford Crown Court.
The prosecutor, Ian Keith Talbot, a police officer, charged the defendant, Patricia Ann Faulkner, on October 30, 1979, that at Stafford in the county of Stafford between September 1, 1979, and October 30, 1979, she did indecently assault a male person of 14 years of age contrary to section 15 (1) of the Sexual Offences Act 1956. The defendant was then bailed to appear at Stafford Magistrates' Court on November 26, 1979, to answer the charge. On November 26, 1979, before the justices sitting at Stafford Magistrates' Court the prosecutor laid an information against the defendant in terms of the charge. On February 5, 1980, the justices heard the information when both defendant and the prosecutor were represented. The justices convicted the defendant and committed her for sentence to Stafford Crown Court pursuant to the provision of section 29 of the
By notice of appeal dated February 6, 1980, the defendant appealed to Stafford Crown Court against her conviction. Together with the justices who sat with him, the recorder heard the appeal on July 18, 1980, when the case was adjourned part heard. On July 21, 1980, the justices were not present or available and with the consent of counsel for the defendant and the prosecutor the recorder continued without them. The recorder found the following facts.
The defendant was convicted by the justices on February 5, 1980, of indecent assault on a boy then aged 14, contrary to section 15 (1) of the Sexual Offences Act 1956. The events giving rise to the charge happened at the defendant's home. The primary facts were not in dispute because the defendant, by her counsel, admitted the truth of the, account of the boy set out in a statement in question and answer form which was before the court. The statement revealed that sexual intercourse, at any rate in the sense of penetration of the defendant by the boy, took place in her bedroom. At that time the boy had left his parents and was living at the defendant's home. Normally the defendant's boyfriend slept with her, but on the night in question he was away from home.
The defendant and the boy watched a horror film on television, and he apparently was scared of it. The defendant told him that he could sleep with her, and because he had been scared of the film he chose to do so. Once they were in bed together the defendant invited the boy to have intercourse with her. In the course of his account of what followed the boy stated that: “The defendant tried to put her hand on my thingy but I wouldn't let her because I have a rupture. She then pulled me on top of her. She was on her back with her legs open. She got hold of my thingy which was a bit hard and put it inside her.”
The contentions of the defendant were that there was no provision of English law which made it an offence for a woman to have sexual intercourse with a boy under the age of 16, that is, an express offence. In those circumstances it was anomalous that a lesser act of sexual intimacy should be regarded as capable of founding an offence. Section 14 (3), which related to indecent assault on girls, relieved of guilt a man who believed the subject of the alleged offence to be his wife although she was in fact under 16, and the marriage was, therefore, invalid, while section 15 contained no parallel provision. For that reason section 15 might not have been intended to apply to an act of indecency committed by a woman against a man, but the Crown Court was bound by authorities to reject that proposition. Particular acts done in the course of the general act of intercourse between a woman and a boy under 16, willingly undertaken by the boy, could not constitute an indecent assault on the boy by the woman. For that proposition reliance was placed on the ruling of Veale J. in Reg. v. Mason (
It was contended by the prosecutor (i) that if the boy had not consented the acts of the defendant amounted to an assault on him; (ii) that the assault was of an indecent nature so that the boy by virtue of his age was incapable of giving...
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