Sexual Offences and Criminal Intent: What the Prosecution Must Prove
| DOI | 10.1177/002201830206600201 |
| Author | Alec Samuels |
| Date | 01 April 2002 |
| Published date | 01 April 2002 |
| Subject Matter | Opinion |
OPINION
Sexual
Offences
and Criminal Intent:
What
the
Prosecution
Must
Prove
Alec Samuels
One might have thought that
what
the prosecution has to prove in a
sexual offence case would be clear
and
elementary. The problem of
sexual abuse has, alas, been with us for many,
many
years. Unfortu-
nately, the law has been, and indeedstill is, unsatisfactory. The following
is an attempt to state the essentials in the light of the House of Lords'
decision in RvK[2001] 3 WLR
471.
Asexual offence is a very serious accusation. The underlying principle
of the criminal law is
that
the prosecution must prove criminal intent,
subjective criminal intent,
and
that
it is to be presumed
that
this sub-
jective criminal intent is required by the creating statute unless expressly
or clearly required otherwise.
If
the statute expressly or impliedly says
nothing about criminal intent,
then
criminal intent is required.
In the past
the
strict view was taken
that
if
sexual abuse took place
against a girl
under
16 and the age of the girl was proved, it was
irrelevant that the defendant Dthought she was 16 or over. Young girls
had
to be protected. Today a more 'liberal' approach is taken, requiring
subjective criminal intent on
the
part of D, but only in some of
the
offences. In the
end
it becomes amatter of policy, balancing competing
or conflicting interests.
The issue has been discussed
and
argued for well over 100 years. In
RvPrince (1875) LR2CCR 154, Dabducted a girl
under
16. The girl told
D she was 18, she consented,
and
Dbelieved that she consented,
and
on
reasonable grounds. Fifteen judges held
that
D was guilty, he
had
done
the prohibited act. One judge held
that
D was
not
guilty, the
common
law presumption was to be applied, the word 'knowingly' was to be
imputed into the statute,
and
if
the
facts
had
been as D honestly
and
reasonably believed, he would have been not guilty. Prince is
now
generally discredited and thought to have been overruled, at least by
inference: RvK, per Lord Bingham at paras 10
and
17,
and
BvDPP
[2000] 2AC
428,
per Lord Nicholls at
465-6,
Lord Steyn at
475-6,
Lord
Hutton at
482,
at least for the abduction offence.
Over the years the judges have gradually shifted the balance. Parlia-
ment
has
been
shamefully irresponsible in
not
making it abundantly
clear in the statute exactly
what
criminal intent, if any, is required,
and
in failing to revise
and
modernise the statute law in accordance
with
contemporary needs (B vDPP [2000] 2AC
428,
per Lord Nicholls at
466;
Lord Steyn at
476,
Lord Hutton at
482).
Few areas of the law can be
more important to society
than
sexual offences law.
97
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