Genital Touching During Arrest and Sexual Assault

Yesterday, during the Royal Wedding, the Metropolitan Police arrested a number of members of a “zombie flash mob”. According to Lesbilicious magazine, the reason for the arrest was that the police wished to move the mob away from Royalists, in case they were caused offence. The group either did not move or moved to another area, reports are unclear on which, and were then arrested.

Screengrab of the law of sexual assault

The Sexual Offences Act 2003 replaced indecent assault with sexual assault.

Amongst those arrested was a transwoman, whose name is not given in the available reports (both Lesbilicious magazine and the Sex Matters blog). During the arrest, the genitals of this woman were grabbed by a member of the police, apparently “in order to ascertain her genital status”. Questions are now being asked across the Internet regarding whether this constitutes a crime.

The following is therefore commentary on both the case itself as reported, and the law of sexual assault as it currently stands. It should not be read as legal advice and, given that the name or other details of the person reportedly assaulted has not been provided in any available report at the time of writing, this should also not be taken as commentary on an event that definitely occurred.

What the law used to say

Prior to 01 May 2004, touching the genitals of another person without consent was regarded as indecent assault; that it “assault or battery in the circumstances of indecency” according to the ever clear Oxford Dictionary of Law. Under sections 14(1) and 15(1) of the Sexual Offences Act 1956, indecent assault was a criminal offence punishable by up to ten years in prison.

Now the law works a little differently. The offence of indecent assault has been removed in its entirety and replaced with the arguably wider offence of sexual assault.

The definition of sexual assault

Sexual assault is defined under section 3 of the Sexual Offences Act 2003 as: the intentional sexual touching of another person without consent or belief that consent exists. The key terms in this are of course the definitions of “sexual” and the definition of “touching”.

Let’s deal with touching first, as it is less complex. Touching for the purposes of the 2003 Act is defined rather widely. It includes:

  • penetration;
  • touching with any part of the body;
  • touching with any item; and
  • touching through an intermediary object, including clothing.

For those of you who are unsure why penetration counts as touching and not rape, that is because the 2003 Act defines rape as “penetration … of the vagina or anus of another person…”. Everything else comes under sexual assault. Presumably this is to increase clarity in what constitutes rape in an attempt to up the conviction rate, but that is a discussion for another day.

What constitutes sexual touching?

The definition of “sexual” for the purposes of the Sexual Offences Act 2003 is covered in section 78 of the Act. This section covers both sexual touching and penetration and determines that an act is sexual if one of two things is true:

  1. The action is, by its nature, sexual, whatever the circumstances or the purpose of the person committing the act; or
  2. The act may be sexual and it is indeed deemed section because of its nature and the circumstances of the person committing it, or any other person in relation to it (or both).

Obviously this definition is quite wide. Again, it appears to be that the definition is wide because it is an attempt to aid the notoriously low conviction rate for sex crimes.

The 2003 Act in Summary

The problem is that by creating a widely-defined crime, conviction is going to come down to two things: whether the “reasonable person” would consider the act in question sexual, which is basically how section 78 works; and whether the jury will consider an act sexual.

The jury is usually the issue, of course. If the act is non-sexual, the jury will not be able to decide that sexual assault occurred because of how the law is worded but there is no corollary for going in the opposite direction. If an act is ambiguous, it all comes down to whether the jury decide it was sexual under the circumstances.

Did the police officer commit an offence?

As it appears there is no court action (or even a criminal investigation that could lead to a prosecution) currently ongoing about this event, we can have a look at applying the law to these events as reported.

Firstly, it is clear that the actions fit within the remit of the offence of sexual assault. Touching has occurred touching of the genitals of a person is, by nature of the action, sexual. We can tell this not only from the fact that genital touching used to constitute indecent assault in and of itself but also from plain old common sense. If it were not clear from nature or common sense, then if the victim believes it to have been sexual, section 78 still allows a case to proceed.

Now to the issue of consent. Although it is clear from the wording of the articles that there was no consent in this case, it is also worth noting at this point that there are presumptions against consent written into the act. Specifically consent will be presumed to have not been given (and also not to have been believed to have been given) if:

  1. The alleged assaulter deceived their victim about the “nature or purpose of the relevant act” (s. 76(2)a); or
  2. The alleged assaulter “intentionally induced” the victim to consent by impersonating a person they knew personally (s. 76(2)(b)).

Clearly only section 76(2)(a) is relevant here. Although we can see from the reports that consent was not given, were it possible to argue that consent had been given, by word or action, the fact that this woman (and, from the way the reports are worded, only this woman) was “cupped” by a member of the police to determine the gender of the officer who should search her may be grounds for invocation of the presumption against consent.

According to reports, the Association of Chief Police Officers has agreed that the procedure for determining the sex of a transgendered person is to ask them, not to grope them. Although this may be only an agreed guideline, in the majority of cases brought before the various courts of England and Wales, “accepted working practices” are taken into account when determining whether a variety of actions were acceptable. It is therefore likely that it will not be possible to raise the defence of consent because the “nature or purpose of the relevant act” is in direct contravention of accepted practice.

It is therefore clear that the actions as reported would fit the requirements of section 3 of the 2003 Act, namely that sexual assault may have occurred. It certainly warrants a very serious investigation.

Tags: , , , , , , , ,