Sexual Offence Defences
There are several sexual offence defences that can be relied on at Court.
If you are being investigated in relation to an allegation of a sexual offence, we advise that you be proactive and seek specialist legal assistance immediately. Our team of nationwide experts can help. Call us now on 01623 397200.
What Isn’t A Sexual Offence Defence?
Provocation, loss of control and diminished responsibility are not defences to any sexual offence.
What Is A Sexual Offence Defence?
CONSENT
Consent is the most common of sexual offence defences.
This is where the defendant argues that they either had the consent of the complainant, or that they had a reasonable belief that they had consent.
ACCIDENT
Sexual touching can be accidental.
Imagine brushing past a woman’s breasts innocently while out shopping.
If this defence is argued, it is for the prosecution to prove that the defence is not correct and that the defendant had formed the required state of mind, usually intention or recklessness.
A defence like this will require the defendant to not have behaved in similar ways previously (the Court may accept the above shopping scenario as an unfortunate one-off, but if the defendant has already been banned from one supermarket because of the same behaviour, you can see how quickly the defence would fall apart), and will rely heavily on how consistent the defendant’s account of the incident is.
ALIBI
An alibi defence occurs when the defendant says, “I couldn’t have done this, because I was somewhere else at the time.”
Alibis are always stronger if there are alibi witnesses, people who can confirm that what the defendant is saying is correct. This may be the girlfriend who was at home with the defendant at the time he is alleged to have been elsewhere, or the bartender who served the defendant beer all night when he is alleged to have been elsewhere.
An alibi defence can succeed without alibi witnesses, especially if the defendant is of good character and gives consistent evidence. Inconsistencies in the evidence of the complainant also help further give credibility to the defendant, so strong cross-examination at trial is vital.
AUTOMATISM AND PARASOMNIA
These defences revolve around the fact that criminal acts can only be committed voluntarily. If a criminal act is committed involuntarily in an automatic state, this is a defence.
Parasomnia is sleep walking, and automatism defences often involve offences committed while a person is sleep walking.
Automatism can also be used as a defence where an offence has been committed due to the effect of their mind by a properly used and prescribed medication. Even voluntary intoxication can, in some cases, provide an automatism defence. Expert evidence is often sought in these complex cases.
COLLUSION
In some cases, witnesses may collude, lie or somehow other contaminate their evidence. In these cases, the court has an obligation to direct the jury to be cautious with the reliance given to that evidence.
In extreme cases, witness evidence can be so tainted that the case is removed from the jury.
Collusion has particular importance for sexual offence cases where the complainant is a relative and their testimony is supported by other relatives.
DOLI INCAPAX
This defence refers to both a child’s capacity to have sex, and a child’s capacity to commit a crime.
It is particularly relevant for historic sexual offence allegations.
Before 20 September 1993, when the Sexual Offences Act 1993 came into force, there was an irrebuttable presumption that a boy under 14 was incapable of having sexual intercourse. This presumption still applies to historic offences before this date if the defendant was under 14 at the time.
There remains a presumption that, for offences alleged to have taken place before 30 September 1998, a child aged 10-14 could not be convicted of a criminal offence unless it was proved by some conduct separate to the offence itself that the defendant knew that what he was doing was seriously wrong.
DURESS
This is a defence to all sexual offences.
Duress is taken to mean:
“a well grounded fear, produced by threats, of death or of grievous bodily harm which requires a person to perform the act alleged”
The threat must be considered enough to have caused a ‘person of reasonable firmness’ in the same situation to have acted in the same way. In an awful case where a boy was forced at gunpoint to commit sexual offences against his brother, for example, this was taken to amount to duress and no charges were brought against the boy (R v Chapman [2006] EWCA Crim 2315).
Fear in and of itself is not enough to amount to duress.
FABRICATION
This is a common defence that sees the defendant say that the allegation is fabricated in its entirety. There are many reasons why an allegation may be fabricated and it is essential that the system does not blindly accept the complainant’s version of events without considering their credibility.
As the complainant’s character is well protected within the court process, this defence must be carefully managed.
INNOCENT ASSOCIATION
This defence simply says that the defendant accepts being associated with the complainant but that that association was innocent, not sexual. It is then for the prosecution to prove that this is not true.
INSANITY
Insanity is a defence to any criminal offence and requires the defendant to show that, on the balance of probabilities, he was insane at the time of the offence.
Insanity has much wider applications than many people realise. A physical illness such as diabetes can amount to insanity if a person suffers a diabetic attack and commits an offence while in that state.
There is often a question about whether insanity or automatism is the correct defence and the two can overlap.
The Trial of Lunatics Act 1883 allows the jury to reach a special verdict of not guilty by reason of insanity in these cases.
In these cases, the criteria of M’Naghten’s Rules must be fulfilled:
- There must be evidence that the defendant was insane at the time of the offence
- The jury must be directed that every person is presumed to be sane unless the contrary is proved
- If the defendant is proved to have been, on a balance of probabilities, insane at the time of the offence, the jury can bring in a special verdict of not guilty by way of insanity
- Whether the defendant avoids punishment depends on the nature of the insanity and the motive, even though this is a motive while insane. For example, an action taken in perceived self-defence while insane should allow a defendant to avoid punishment, while an action taken in perceived revenge while insane should see a defendant be punished.
- Expert evidence must be heard from two registered medical practitioners, one of whom must be approved under the Mental Health Act 1983
INTOXICATION
Intoxication deals with the effects of both drink and drugs and is relevant to the defendant, complainant and all witnesses.
Intoxication is an important point for cases of sexual allegations as an intoxicated witness may be less reliable and a case cannot be proved if the evidence cannot be relied on.
For the complainant, the question is always whether they are capable to have given consent, defined in the Sexual Offences Act 2003 as “a person consents if he agrees by choice and has the freedom and capacity to make that choice”.
Intoxication of the defendant can be an aggravating factor as well as a potential defence. It is a very delicate issue and must be handled carefully.
Intoxication may suggest a less accurate memory of the incident and a less reasonable attitude towards the complainant.
A drunken intent is still an intent but it may be that the defendant was so intoxicated they were incapable of forming the required state of mind to commit an offence that requires intent.
Intoxication due to being spiked either by drink or drugs is a defence.
MISTAKE
An honest (and not intoxicated) belief in their being circumstances which, if true, would make the defendant’s actions innocent is a defence to offences unless expressly excluded.
This can, for example, be situations where the defendant has a mistaken belief as to the complainant’s age, believing them to be of a legal age.
An honest belief that the acts committed are not illegal is not a defence, even if the defendant is foreign and the crime committed is not illegal in his home country.
This page is designed to offer an introduction to the sexual offence defences available.
If you are being investigated for, or charged with, a sexual offence, it is vital that you seek specialist legal help as soon as possible. We can discuss these sexual offence defences in more detail and advise you on the best way forward for your particular case. Forrest Williams can help. Give us a call on 01623 397200.