Rape, Assault by Penetrations and Sexual Assault

Sexual Offences Act 2003:

1. Rape

(1)A person (A) commits an offence if—

(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b)B does not consent to the penetration, and

(c)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.

(3)Sections 75 and 76 apply to an offence under this section.

 

(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

 

2. Assault by penetration

(1)A person (A) commits an offence if—

(a)he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b)the penetration is sexual,

(c)B does not consent to the penetration, 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.

(3)Sections 75 and 76 apply to an offence under this section.

 

(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

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.

(3)Sections 75 and 76 apply to an offence under this section.

(4)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 10 years.

4. Causing a person to engage in sexual activity without consent

(1)A person (A) commits an offence if—

(a)he intentionally causes another person (B) to engage in an activity,

(b)the activity is sexual,

(c)B does not consent to engaging in the activity, 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.

(3)Sections 75 and 76 apply to an offence under this section.

(4)A person guilty of an offence under this section, if the activity caused involved—

(a)penetration of B’s anus or vagina,

(b)penetration of B’s mouth with a person’s penis,

(c)penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or

(d)penetration of a person’s mouth with B’s penis,

is liable, on conviction on indictment, to imprisonment for life.

(5)Unless subsection (4) applies, a person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 10 years.

 

BDSM play must be consensual, and this is why BDSM contracts exist –  to try to prove consent.  It’s still the case that if a partner says No, this means No – although in BDSM, we substitute the word No with RED and the parties may pre-choose to agree to ignore No and Stop, in favour of RED; however it is a really grey area (all 50 shades of it) where a complainant says I’d forgotten the safe word. (If you’re playing in a Dungeon with me you’ll find notices saying “RED means STOP” and “YOUR SAFE WORD IS RED”, so there’s no risk of this claim). In R v Steven Lock [2013]  the victim admitted that they’d agreed the safe word as Red and also admitted that it didn’t occur to her to use the word Red. 

It’s often said that “you can’t rape the willing”, but that’s not true in a large number of cases:
– duress
– statutory rape (under age sex)
– permanently diminished capacity, such as the mentally sub-normal,
– temporarily diminished capacity, such as the drugged or drunk, and groomed, and possibly those who are

 

It is in this area that there are BDSM concerns. Sub-space is a mental state where the sub is mentally suggestible and therefore there may not be true consent if consent arises in sub-space. So where a sub has not consented to anal sex, but is in deep sub-space, then she may be suggestible to anal sex but unable to truly consent.

In the R v Steven Lock [2013]  case, there was consent to battery (including the use of whips) and bondage as part of the “game” and the complainant had “Property of Steven Lock” tatted on her labia. The “slavery BDSM” contract provided clear evidence of prior and agreed consent, so a critical question was whether the complainant had used the safe word, because that would have removed any prior consent. It was accepted that the safe word was never used. Whilst  no “contract” can provide consent to acts that are deemed criminal, the test of what is criminal regardless of consent and what is no longer criminal because of consent is a grey area. The Complainant said to the Court “I knew there would be pain involved and I knew I wasn’t going to like it but I’d agreed to it and had to follow it through….. I could hear the swishing of the rope as he landed the blows on me ……he put the rope around my neck and padlocked my wrists to a chain and padlocked the chain onto the door……. I was then chained and whipped like a dog. I expected some playful spanking but not a lashing with a rope. The case is a Crown Court and therefore, whilst the case is persuasive about consent, it is soft law and sets a precedent that can be overturned in the future by a Court of Criminal Appeal.

A future Crown Court judge, in light of the Lock case is likely to direct that if the jury is satisfied that the complainant had consented to assault by a whip or rope, and assuming that no safe word was used as this would have removed any consent from the time it was used, then the complainant had consented to a strike of whip or rope which was not excessive in force. The fact that the Complainant may have been hit harder than she anticipated is  irrelevant unless it fell within a definition of excessive force. It will be a matter for the jury to decide what was excessive forceand in light of caselaw in Walsh (R v Walsh 2012) this is likely to be the level of force used within BDSM generally, although the jury will be entitled to examine whether  there was any prior agreement about the level of severity of the strokes*. The question of whether a safe word was used would also be a matter for the jury as a question of fact.

(*For example, prior sessions may have established what was an acceptable severity of stroke and what was too hard and in such cases, a stroke would be deemed consented to unless it was either materially more severe or so sever that it risked damage in the medium term).

For further reading in this area, see Rook and Ward on Sexual Offences: Law and Practice (4th Revised edition) (1606 pages) £159 (5th edition due Dec 2015)