Sexual Offences - Avoiding Patient Allegations of Sexual Assault

Originally published in April 2003

By Nick Rawson and Suzanne Webb (Leeds office)

In an age where healthcare professionals are under increasing pressure to justify their clinical decisions and actions, it is imperative that they are aware of the present law on sexual assault and rape and the proposed reforms. This article provides a brief synopsis of the current law of rape and indecent assault and draws attention to the new Sexual Offences Bill.

Current law

Under s.1 of the Sexual Offences Act 1956 it is an offence for a man to rape a woman or another man. Rape is committed if he has sexual intercourse with a person (whether vaginal or anal)who at the time of the intercourse does not consent to it, and at the time he knows that the person does not consent to the intercourse, or is reckless as to whether the person consents to it.

When considering the defence of 'consent 'the House of Lords in DPP v Morgan1 determined that the defendant 's belief in the complainant 's consent needed to be an honest one although not necessarily reasonable. However, subsequent legislation in s.1 Sexual Offences (Amendment) Act 1976 ensured that a jury could take account of the circumstances at the time to consider whether the defendant could have honestly held that belief. This section did not affect the general principle that it was for the complainant to adduce evidence of her lack of consent, and such evidence may include assertions that threat or force was used, or evidence that by reason of drink, drugs, sleep, age or mental handicap, the complainant was unaware of what was occurring and/or incapable of giving consent. In cases where the alleged sexual assault has not involved penile penetration, the act may amount to assault under s.14(1) Sexual Offences Act 1956 where the circumstances are considered as 'indecent 'by a right-minded individual and where it can be shown that the defendant intended to commit the assault.

Such circumstances may be proven by facts relating to the relationship of the defendant to the complainant and how and why the defendant has come to embark on the alleged course of conduct. The above principles in relation to consent and its related defence would apply to allegations of indecent assault.

Proposed legislative reform

It is against this background that the Sexual Offences Bill was drafted. This bill was introduced to the House of Lords on 28 January 2003 and establishes the following new offences:

  1. The offence...

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