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Successes And Failures Of Sexual Offences Act 2003

1419 words - 6 pages

Successes and Failures of Sexual Offences Act 2003

The Sexual Offences Act 2003 was heralded as a response to shifting
social attitudes, encompassing the broad libertarian approach towards
sexual behaviour that has become increasingly dominant since the Act
that preceded it whilst attempting to account for the myriad of more
widespread sexual deviancies and abusive practices that were otherwise
poorly regulated by existing statute. It was designed as a
regularisation of the law on sexual offences giving a modern and
consistent perspective upon the particular offences; one that would
allow the courts to proceed on a fairer and less discriminatory basis,
both in its prosecution of offenders and it in treatment of victims.

Few statutes can have been subjected to the same level of public
scrutiny as this Act, emerging from a climate of public concern over
the adequate protection of their children and the proliferation of
paedophilia. The abnormally low conviction rate for rape as well as
socio-criminal phenomena like 'date-rape' or the effect of immigration
on acceptable sexual practices were yet more facets of a many-handed
debate about how the law should respond to a changing world.
Understanding these issues is central to finding the coherent thread
upon which different changes in the Act attempt to hang.

THE ISSUE OF CONSENT

In acknowledgement of the particular difficulties involved in the
prosecution of rape cases and the consequent poor conviction rates, a
central alteration in the law on sexual offences concerned the meaning
of consent and the manner in which it should be established in a court
of law. Previously, the Sexual Offences Act 1956 had specified that
guilt in rape could be established only if there was knowledge of the
absence of consent or recklessness as to the existence of consent. The
first of these propositions is unproblematic and remains central to
the law on consent. The second proposition hangs entirely on what
formulation of 'recklessness' is being used.

Up until the case of Morgan (1974), a defendant was judged reckless as
to the existence of consent by virtue of an objective test as to the
presence of reasonable grounds upon which to decide that the woman was
consenting. The defence of honest but mistaken belief was only
available if such reasonable grounds could be established. The House
of Lords in Morgan decided that the objective test was not consonant
with the established basis of mens rea in criminal activity; that the
guilt must relate to the state of mind of the defendant at the time of
the criminal act. The test became a subjective one; did the defendant
honestly believe in consent regardless of the reasonableness of that
belief? If so, no conviction could be found. One can immediately see
both the academic attraction of the Lords'...

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