Sexual Assault: An Interesting Case Study

Occasionally the Magistrates' Court has to deal with the emotive crime of sexual assault.

The very phrase sexual assault conjures up an image in most people's minds that is probably at the more serious end of the spectrum.

As well as encompassing the most serious of cases where one person touches an intimate part of another without their consent, most people don't realise that sexual assault can be committed in the absence of intimate touching when the mens rea is sexually motivated.

The most serious cases of sexual assault involve the unwanted direct touching of the victim's buttocks, groin area, upper thighs or breasts. A conviction in those circumstances usually results in a sentence well outside the Magistrates' sentencing powers, so those cases invariably end up at the Crown Court for trial and/or sentence.

Less serious cases of sexual assault, although still very distressing for the victim, can be concluded in the Magistrates' Court. Even if the defendant pleads not guilty and elects summary trial, the Magistrates' Court can still commit the case to the Crown Court for sentencing if necessary.

In today's article we explore the issues surrounding sexual assault. We shall refer, in a suitably circumspect manner, to a sexual assault case dealt with by the Magistrates' Court.

The legislation:

Sexual assault is an offence under section 3 of the Sexual Offences Act 2003.

It is an either way offence with a maximum penalty of 10 years' custody on conviction on indictment, 12 months' custody and/or an unlimited fine on summary conviction.

The elements of the offence, which must all be satisfied for a conviction, are as thus:

A person (A) commits an offence if-

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Even in the 21st century the legislation tends to refer to people in the masculine form, but of course the provisions of the Act apply irrespective of the genders of A and B.

The case of Bloggs v. Regina:

Mr Joseph Bloggs, not his real name, appeared before the court charged with a single count of sexual assault. He denied the offence and was appearing for trial. The alleged injured party and main prosecution witness in the case, Miss Jane Doe, not her real name, failed to attend the trial to give her witness evidence in person, but the Crown decided to proceed on the basis of available CCTV evidence.

The prosecution case:

The Crown's case was that Mr Bloggs had gone into a pub, The Dog and Whistle, in the late evening. A young woman, Miss Doe, was the member of staff who served Mr Bloggs that evening.

Mr Bloggs took a shine to Miss Doe and made some flirtatious comments in her direction. Miss Doe politely ignored Mr Bloggs' comments and busied herself preparing his drink. As she passed his drink across the bar Mr Bloggs leant forward and moved his head as if to kiss Miss Doe on the face.

For a split second Mr Bloggs placed his hand on Miss Doe's lower arm. Miss Doe recoiled from the bar and no kiss occurred. A few moments later Miss Doe passed Mr Bloggs' crisps across the bar and the same thing happened, with Mr Bloggs bobbing forward, touching Miss Doe's lower arm and her recoiling backwards. Mr Bloggs finished his drink and left The Dog and Whistle without further interaction with Miss Doe.

The exchange between Mr Bloggs and Miss Doe had been caught on CCTV, but there was no audio available.

According to the Crown the fact that Mr Bloggs had been flirting with Miss Doe indicates that his advances towards her were sexually motivated. The fact that Miss Doe recoiled from those advances should have made it clear to Mr Bloggs that Miss Doe did not consent to his advances. The fact Mr Bloggs made contact with Miss Doe's arm whilst in the process of trying to kiss her, albeit for a split second, makes that sexual contact.

The defence case:

Mr Bloggs agreed with many aspects of the Crown's account and gave witness evidence towards his own defence.

He admitted that he was present in The Dog and Whistle, having earlier been drinking elsewhere in the town centre. He described his manner as merry and friendly, because he was out celebrating a big win on the horses.

Mr Bloggs said he had found Miss Doe's manner charming and appreciated her good service. As the bar area was noisy, he leant forward to thank Miss Doe before leaving the bar.

Mr Bloggs admitted his drink-fuelled manner was boisterous, merry and friendly, but categorically denied having flirted with Miss Doe or having any sexual motives when he leant forwards and placed his hand on her arm.

The Magistrates' decision:

Given the lack of audio evidence the Bench decided that it could not be sure that Mr Bloggs had been acting in a flirtatious and sexual manner with Miss Doe instead of just a boisterous and merry one.

That being the case, there was insufficient evidence that Mr Bloggs' touching of Miss Doe was sexually motivated and he was therefore found not guilty of the offence.

The Crown had clearly been banking on Miss Doe appearing in person and giving evidence to the effect that Mr Bloggs had been making sleazy, sexual comments towards her. In the absence of her evidence the case against Mr Bloggs was very weak indeed.

An aside:

The day after the incident the police attended The Dog and Whistle on an entirely separate matter. Mr Bloggs' presence the night before came up in conversation entirely by coincidence. It was at that point that the police reviewed the pub's CCTV footage and asked Miss Doe about her interaction with Mr Bloggs the night before. Only then was a complaint made and Mr Bloggs arrested on suspicion of sexual assault.

Mr Bloggs is well known to the police and courts alike, having numerous previous convictions and regularly featuring in the crime column of the local newspaper. He does not commit sexual or violent crimes, but is a prolific thief and vandal who is undoubtedly viewed as a nuisance by the police.

Read into that what you like!