A Question of Fact Not Intent: No Requirement to Prove that D Intended the Touching To Be Sexual for the Purposes of Sexual Assault: Attorney General’s Reference (No 1 of 2020) [2020] EWCA Crim 1665
| Author | Mark Thomas,Samantha Pegg |
| DOI | 10.1177/00220183211009012 |
| Published date | 01 June 2021 |
| Date | 01 June 2021 |
| Subject Matter | Case Notes |
Case Note
A Question of Fact Not Intent:
No Requirement to Prove that
D Intended the Touching
To Be Sexual for the Purposes
of Sexual Assault
Attorney General’s Reference (No 1 of 2020)
[2020] EWCA Crim 1665
Keywords
Sexual assault, sexual touching, intention
Section 3 of the Sexual Offences Act (SOA) 2003 prescribes the offence of sexual assault which is
committed in circumstances where a defendant intentionally touches another person, the touching is
sexual, the other person does not consent to the touching, and the defendant does not reasonably believe
that the other person consents to the touching. Omitted from the s 3 definition is whether an additional
requirement exists that the defendant must intend that his touching is sexual. This was the issue in AG’s
Reference (No 1 of 2020) [2020] EWCA Crim 1665; [2021] 1 Cr App R 15.
In AG’s Reference, following an acquittal for sexual assault in the Crown Court, the Attorney General
referred a point of law to the Court of Appeal for consideration, pursuant to s 36 of the Criminal Justice
Act 1972. The referred question was as follows (at [2]):
Is it necessary for the prosecution to prove, as an element of the offence of sexual assault, not only that the
offender intentionally touched another person without their consent and without reasonable belief in their
consent, and that the touching was sexual, but that the offender intended his touching of that person to be
sexual?
While on a train travelling towards Newcastle, the defendant (D—who cannot be identified) kissed
the complainant (C) on her lips. D was charged with sexual assault, contrary to s 3 SOA 2003. The
parties differed in their accounts as to why D kissed C: C alleged that D appeared intoxicated and
forcefully kissed her on the lips. D, on the other hand, alleged that he kissed C on the lips to ‘protect’ and
‘support’ her following alleged hurtful comments made by other passengers as to C’s appearance. D
alleged that the kiss was a ‘peck’ and was not intended to be sexual. Despite these differences between
the parties’ cases, it was common ground that D had kissed C (thus amounting to an ‘intentional
touching’), this was done without C’s consent, and D did not hold a reasonable belief that C was
consenting.
The sole issue at trial, therefore, was whether the touching was sexual within the meaning provided in
s 78 SOA 2003. The parties agreed that the kiss was not, by its nature, sexual within the meaning of s
78(a). The issue, therefore, was whether the touching could be sexual within s 78(b). The prosecution
alleged that the kiss was sexual due to its circumstances (for example, the age difference between D and
C and the fact that they were strangers to one another) and the purpose of D being of sexual gratification.
The Journal of Criminal Law
2021, Vol. 85(3) 240–243
ªThe Author(s) 2021
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DOI: 10.1177/00220183211009012
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