The Youth Criminal Evidence Act

Sexual offences cover an enourmous range of conduct including rape,indecent assault, buggery, gross indecency between men, indecent exposure, unlawful intercourse with a 'defective woman,' incest & prostitution related offences. The definition of rape was changed fundamentally by the Criminal Justice & Public Order Act (CJPOA) 1994, Sec 142 which substitution sec 1(2) Sexual Offences Act 1956 by stating that it is an offence for a man to rape a woman or another man & that rape occurs if sexual intercourse (either vaginal or anal) is committed without the consent of the other party & he knows the other party does not consent or is recklessly as to whether that person consents.

Although this new definition did improve the old version in that it included marital rape , male rape & anal intercourse (previously classified as buggery), it still does not include forced oral sex & penetration by objects which may be no less traumatic than 'connentional rape'. Furthermore, this defintion shows that a woman cannot be guilty of rape. There is some legislation regarding the anonymity & protection of the victim.

Sec 4 Sexual Offences (Ammendment) Act (SOAA) 1976, & sec 24 The Youth & Criminal Evidence Act (YCEA) allows screening of victims in court1 and S41 prohibits evidence of previous sexual behavior except in very recent & similar sexual behavior. S 41 of the Youth Justice & Criminal Evidence Act prevents cross-examination by the defendant & s32 CJPOA abolished the corroboration rules. However, the trial still remains as much of an ordeal for the victim as ever, it is still she who is on trial, her lifestyle, appearance, behaviour & dress sense.

No legislation has yet been passed to ensure that rape trials are fair for victims as well as defendants. Although the Criminal Justice Act protects children by the use of the TV & video link, some counsel are still suspicious of the new technology. The act does not give children the right to give evidence by TV link, upto the court's discretion. Moreover, the Tv link does little to affect the proceedins or the tone of the cross-examinations.

There is a further reluctance of the judges to interfere where the cross-examination of the victim is oppressive for dear of appeal. The attitude of the judiciary can be seen in R v A 2 in which the House of Lords may have possibly undermined the 1999 Act in favour of the defendants right to fair trial over the protection of the victim allowing evidence regarding an alleged sexual relationship between victim & defendant. Thus the current law regarding rape is still clearly flawed. Indecent assault is widely used as a residual offence, beneath rape & attempted rape.

It is defined in SOA 1956; it is an offence for a person to assault a man(S15) or a woman (s14). The maximum penalty is now 10 years. (SOA 1985, s4(3)). In Court3, the House of Lords distinguished 3 types of cases which 'any right-minded observer' would regard as decent, (George), indecent (Thomas)or unsure (Johnson); then the courts would look at motive. Both serious forms of assualt such as forced oral sex & minor forms, unwanted kiss, share the same offence of indecent assault under current law thereby undermining the offence.

It ought to be divided as proposed into two grades the more serious form of sexual assualt bein labelled separately in accordance with the principle of fair labelling which would bring justice to the victim & act as deterrents to potential offenders. Furthemore, there is no precise & acceptable way to draw the line between decent & indecent conduct. This is shown in Pratt where the shining of a torch on 2 naked boys was held to be in the unsure category while many 'right-minded people' would regard the conduct as indecent.

Thus the offence of indecent assault is flawed; it is an anachronism 7 should be replaced by an offence of sexually aggravated assault with no reference to indecency. Buggery is now confined to consensual anal intercourse with a person under the age of 164. Gross indecency between men (s13 SOA ) covers a man being sexual with another man in public or where someone else is present. Indecent Exposure, Vagrancy Act 1824 s4, Town Police Clauses Act 1847 s 28 used when a man ' willfully & indecently exposes his person'. This acts are clearly old fashioned as there is no such similar offence for women.

Sexual offences also include the protection of the so-called 'defective' {SOA 1956 s7(1)} however, there is no such similar protection for men. The age of consent is 16. However, under the SOA 1956 s 5(1) if a man has sex with a girl under 13, he receives a maximum life imprisonment; but sex with a girl under 15 (SOA 1956 s6(1)) he receives maximum 2 years imprisonment. Consent of the girl is immaterial as the law maintains the fiction that no girl under 16 is capable of consenting to sex. This can be criticised. Firstly, no similar protection is given to ypung boys who are just as vulnerable.

Furthermore, the discrepancies in punishment, for a girl under 13 its life imprisonment but if she is between 13 & 16 then it is 2 years. Also the maximum for indecent assualt on a girl under 16 is 10 years thus treating it as more serious than intercourse itself. Although mistake as to age is no defence, 'the youg man's defence' exists as does the rule in Tyrell's case i. e. a person cannot be convicted for an offence that was created for that person's protection. The treatment of prostitutes in English criminal Law is damaging, ineffective & hypocritical.

The fact thhat there are different laws surroundidng prostitutes makes them seem less worthy, different from other women and generates the attitude that they are second class citizens. Thus the current law is flawed, it lacks coherence & structure. Much is old showing the social attitiudes & roles of men & women from the 19 th century. Recent refoem proposals havce to a certain extent improved this position. The current law on the issue of consent is set out on case law, is complex. The only provision being that consent is different from mere submission, Olugboja5.

The reform proposals change this by listing a number of situations where consent is clearly ansent such as when it is induced by impersonation, subject to fear of force, due to serious harm or detriment to oneself or others, unlawfully detained, unconscious, unable to communicate due to physical incapacity, or had agreement given by a third party. The defence of 'honest belief,' DPP v Morgan6 will be subject to a reasonableness test i. e. did the accused take all the reasonable steps to ascertain that there was free agreement. The age of consent remains 16 but children under 13 are deemed incapable of giving legally significant consent.

The definition of rape will be widened to include penile penetrations of the vagina, anus or mouth & will cover surgically reconstructed male & female genitilia. Maximum penalty is life imprisonment. It can still only be physically performed by a man but a new offence of 9causing another person to perform an indecent act' will be used for women & will carry a maximum of life imprisonment. Existing law on drug assisted rape is gender biased & will be substituted to admistering drugs to subject them to indecent acts without their consent & increase the maximum penalty to 10 years imprisonment.

Indecent assault will be divided into an offence of sexual assault by penetration for non- penile, non-consensual penetration with a maximum of life imprisonment, and non-penetrative behavior with maximum 10 years imprisonment. Where vicim is under 13 penalty is 14 years. Another similar offense will be introduced to cover the performance od indecent acts, same penalty as the above, therby closing a gap in the legislation. Creation of a new offence of ' assault to commit rape or sexual assault fills in the gap of when a criminal act is combined with the clear intention to commit a sex offence.

A mistake as to the age of a child victim is no defence where victim is under 13 and where victim is between 13 & 16 defence limited to yound defendants based on a reasonableness test & only if they hant raised the defence before. Any other sexual activity with direct physical contact 14 years penalty, and no-contact activity have a maximum 10 years imprisonment. Gender-specific offences of incest will be replacedby familial Sexual abuse of a child & prohibited adult sexual relationships. Further an offece of 'Zabuse of position of trust' will protect children under 18 from people looking after them.

New offences also created to protect people with a learning disability & consensual sexual activity will also be criticised where the victim is vulnerable as their capacity to consent has been affected by the disability. New offences are also created to prevent commercial sexual exploitation of both adults & childern. Other offences include Voyeurism where a person is secretly observed, 2 years imprisonment; sexual behavior in a public place, beastiality results in 2 years imprisonment with further cruelty to animals charges & the new offence of sexual intercourse with human remains, 2 years imprisonment also.

Although prostitution is not illegal reforms are needed to make it non-biased & gender neutral. Thus the new reform proposals do improve the position of sexual offences which were archaic, incoherent & discrimantory. With changing social attitudes reforms were lonf over due. The new reform proposals bring coherence & structure into the law; by extendidng the definition of rape, defininf consent, limiting the defence of honest belief, replacing the archaic indecent assualt so that offences are fairl labelled 7 punished according to seriousness.

Furthermore, introducing new offences to fill in the previos gaps in law such as assault to commit rape & by using the phrase 'perform an indecent act ' means that women may now also be suitably punished with the same punishment although the offence will not be called rape. Also protection for children 7 the mentally-handicapped means that both male & female children are protected & the previous discrepancies regarding punishment removed.

However, even in the reform proposals consent is only taken to be absent when there are threats of violence or deception as to HIV status. Also due to the proximity of the defendant & victim by making a simple inquiry it will be known whether yhe victim was consenting. Howver, rape should be about protecting sexual autonomy i. e. the freedom of choice. The law should shift the focus away from whether victim consented, to the defendant's intentions & actions. I. e. whether the defendant used force, fear or fraud to obtain sexual intercourse.