A problem pointed out with the 2003 Sexual Offences Act (here, s.3, Sexual Assault) is that it does not define sexual touching nor say if 'sexual' means in the eyes of the general public, the complainant or the defendant. The act is relatively new and there is an element of testing going on.
3 Sexual assault
(1) 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.
(2) 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.
That's why there are all the references to 'jumping on girls' backs' and the "pretending to have a bad leg". The prosecution needs to show that he obtained consent deceitfully in some cases and didn't bother in others. (See s.76)
The bigger problem is to show clause (b) that it was sexual, but the prosecution didn't have to, because despite what the defendant said in court, he admitted the charge.
This is the CPS in effect saying "Come off it you old perve, you haven't found a penalty-free way to indulge your fetish. We know it was sexual, you know it was sexual, and even the dozy wotnames who gave you a piggyback when asked, now realize it was sexual, so cough to it or else you can argue definitions at trial, and you know how juries feel about sex offenders and minors."
Looking at the penalties, admitting the offence limits the penalty to up to 6 months and/or a fine. Since they let him out on bail, they obviously don't think he's very dangerous (beg to differ; jumping on peoples' backs could cause a potentially serious injury).
If he decided to fight it, the penalty can go up to 10 years in chokey. It's not regarded as a trivial matter.
Without fuller court records it isn't possible to know why the prosecution got tangled up in the business of "it's not indecent" as that only confuses the matter. The weren't going for a charge of indecent assault in the first place and AFAICS, the old s.14 of the 1956 Act was repealed, so that charge wasn't available to them.
I could easily be wrong about that last paragraph though - the CPS advice seems to need re-writing and doesn't look like it helped the prosecutors very much.
Notwithstanding that the bloke in this case needed a good telling off, the philosophical point is, what happens if I get aroused when my elbow touches a woman's upper arm? Does that mean it would be illegal for me to travel on public transport during the rush hour?
"A problem pointed out with the 2003 Sexual Offences Act (here, s.3, Sexual Assault) is that it does not define sexual touching nor say if 'sexual' means in the eyes of the general public, the complainant or the defendant."
More bad law from the bunch of lawyers in government. I'm surprised, I really am...
"Notwithstanding that the bloke in this case needed a good telling off, the philosophical point is, what happens if I get aroused when my elbow touches a woman's upper arm?"
Well, don't worry. I'm sure there's a specialist website for that!
"Anatomically, if he's on the back, how does he ..... ? Well, never mind."
Given that consent is available does it matter if an arousal is intentional or if Mark is just pleasantly surprised when he touches women? I don't want to know what happens if he shares his accidents with people, that’s probably not a matter for the train or the courts. In fact Mark is it legal for you to be out and interestingly how are you with hands?
"The court was told that Bobbette had not assaulted his victims in an indecent manner but that none of them had wanted him to touch them. "
ReplyDeleteI'm confused now. He didn't touch them indecently but he did commit sexual assault? Precisely how does that work?
Me, miss, I know the answer to that one.
ReplyDeleteA problem pointed out with the 2003 Sexual Offences Act (here, s.3, Sexual Assault) is that it does not define sexual touching nor say if 'sexual' means in the eyes of the general public, the complainant or the defendant. The act is relatively new and there is an element of testing going on.
3 Sexual assault
(1) 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.
(2) 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.
That's why there are all the references to 'jumping on girls' backs' and the "pretending to have a bad leg". The prosecution needs to show that he obtained consent deceitfully in some cases and didn't bother in others. (See s.76)
The bigger problem is to show clause (b) that it was sexual, but the prosecution didn't have to, because despite what the defendant said in court, he admitted the charge.
This is the CPS in effect saying "Come off it you old perve, you haven't found a penalty-free way to indulge your fetish. We know it was sexual, you know it was sexual, and even the dozy wotnames who gave you a piggyback when asked, now realize it was sexual, so cough to it or else you can argue definitions at trial, and you know how juries feel about sex offenders and minors."
Looking at the penalties, admitting the offence limits the penalty to up to 6 months and/or a fine. Since they let him out on bail, they obviously don't think he's very dangerous (beg to differ; jumping on peoples' backs could cause a potentially serious injury).
If he decided to fight it, the penalty can go up to 10 years in chokey. It's not regarded as a trivial matter.
Without fuller court records it isn't possible to know why the prosecution got tangled up in the business of "it's not indecent" as that only confuses the matter. The weren't going for a charge of indecent assault in the first place and AFAICS, the old s.14 of the 1956 Act was repealed, so that charge wasn't available to them.
I could easily be wrong about that last paragraph though - the CPS advice seems to need re-writing and doesn't look like it helped the prosecutors very much.
WOAR nails it, it's that b) that's the problem.
ReplyDeleteNotwithstanding that the bloke in this case needed a good telling off, the philosophical point is, what happens if I get aroused when my elbow touches a woman's upper arm? Does that mean it would be illegal for me to travel on public transport during the rush hour?
Anatomically, if he's on the back, how does he ..... ? Well, never mind.
ReplyDelete"Me, miss, I know the answer to that one. "
ReplyDeleteImpressive! ;)
"A problem pointed out with the 2003 Sexual Offences Act (here, s.3, Sexual Assault) is that it does not define sexual touching nor say if 'sexual' means in the eyes of the general public, the complainant or the defendant."
More bad law from the bunch of lawyers in government. I'm surprised, I really am...
"Notwithstanding that the bloke in this case needed a good telling off, the philosophical point is, what happens if I get aroused when my elbow touches a woman's upper arm?"
Well, don't worry. I'm sure there's a specialist website for that!
"Anatomically, if he's on the back, how does he ..... ? Well, never mind."
I guess it takes all sorts...
Given that consent is available does it matter if an arousal is intentional or if Mark is just pleasantly surprised when he touches women?
ReplyDeleteI don't want to know what happens if he shares his accidents with people, that’s probably not a matter for the train or the courts. In fact Mark is it legal for you to be out and interestingly how are you with hands?