1. Informal Session on Sexual Offences (NI) Order 2008 Monday 9 th March 2009

2. Sexual Offences (NI) Order 2008 Commencement – 2 nd February 2009 Sexual Offences Act 2003

3. Transitional arrangements Problems with date straddling offences Making indecent digital images created legally before commencement

4. Rape (Article 5) Intentional penile penetration of the vagina, anus or mouth Victim does not consent Defendant does not reasonably believe that the victim is consenting

5. Sexual Penetration (Article 6) Intentional penetration of the vagina or anus by a body part or anything else Penetration is sexual Victim does not consent Defendant does not reasonably believe that the victim is consenting

6. Sexual Assault (Article 7) Intentional touching of the victim Touching is sexual Victim does not consent Defendant does not reasonably believe that the victim is consenting

7. Causing Sexual Activity (Article 8) Intentionally causing another to engage in an activity Activity is sexual Victim does not consent Defendant does not reasonably believe that the victim is consenting

8. Victims under 13 R –v- G [2008] UKHL 37 Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence. Lady Hale at [46]

9. Touching (Article 2(11)) (a) with any part of the body, (b) with anything else, (c) through anything, and in particular includes touching amounting to penetration. R –v- H [2005] EWCA Crim 149

10. Intentional Act R –v- Heard [2007] EWCA Crim 125 a drunken intent is still an intent a drunken accident is still an accident

11. Sexual Act (Article 2(8)) - [The act] is sexual if a reasonable person would consider that – (a) whatever its circumstances or any persons purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual R –v- H [2005] EWCA Crim 149 Would you, as 12 reasonable people, consider that because of its nature the touching could be sexual? If no, they must acquit. If yes, secondly, would you, as 12 reasonable people, in view of the circumstances and/or the purpose of any person in relation to the touching, consider that the touching was in fact sexual. In answering the first question, the circumstances pertaining before and after the touching must not be taken into consideration.

12. Consent (Articles 3, 9 and 10) Article 3 - For the purposes of this Order, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. Hallett LJ in R –v- H [2007] EWCA Crim 2056 at [34] – Issues of consent and capacity to consent to intercourse …. should normally be left to the jury to decide. Article 9 – If any of the 6 circumstances set out in 9(2) existed, and the defendant knew they existed, then the victim is to be taken not to have consented to the relevant act, unless sufficient evidence is adduced to raise an issue as to whether the victim consented. There is a similar presumption in respect of the defendants belief about consent.

13. Any person was using violence at the time against the victim, or the victim was in fear of violence Any person was causing the victim to fear that violence would be used against any person The victim was unlawfully detained The victim was asleep or unconscious Because of a physical disability the victim would not have been able to communicate with the defendant The defendant had administered to the victim without his/her consent, a substance causing the victim to be stupefied or overpowered

14. Article 10 – conclusive presumptions the defendant intentionally deceived the victim as to the nature, or the purpose of the act; or the defendant intentionally induced the complainant to consent by impersonating a person known personally to the victim.

15. R –v- Taran [2006] EWCA Crim 1498 It is not the task of a judge to read to the jury an abstract lecture on the law but to explain to them in simple terms those parts of the law that arise for application in the case they were trying.

16. Intoxication – Defendant May the defendant have genuinely believed the complainant was consenting? Here the jury are entitled to take into account any evidence of the defendants intoxication. If the jury are sure that he had no such belief, then this element is proved. If they consider that he may have had such a belief, then they should consider (b); Was the belief reasonable in all the circumstances? Here intoxication is not relevant and the jury must consider whether the belief would have been reasonable for a sober man in all the circumstances.

17. Victim – Intoxication R –v- Bree [2007] EWCA Crim 804 If through drink…the complainant has temporarily lost her capacity whether to have intercourse…she is not consenting. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may well evaporate well before a complainant becomes unconscious.