Academic Opinion: Other Sexual Offences
Is strict liability in cases where the complainant is under 13 justified?
Following R v G, the sexual offences against children (sections 5 – 8 of the SOA 2003) are considered strict liability as to age. This means that it is no defence to say that the defendant reasonably believed that the complainant was older than 13.
Is this a justified approach to liability in these cases?
Against Strict Liability in these cases
- Disproportionate? – The strict liability approach produces harsh results. R v G involved a 15-year-old defendant. It was agreed that the complainant had previously told the defendant that she was also 15, which the defendant had reasonably believed, and that the sex had been consensual. It has been argued that a charge of rape was disproportionate under those circumstances, and that the defendant ought to have had some defence available to him.
- Human rights concerns – Under Article 6(2) of the ECHR, defendants are entitled to be presumed innocent until proven guilty. In ‘Is Strict Liability Always Wrong?’, Simester suggests that strict liability offences essentially breach this principle, since they do not have to involve a mens rea element of fault, only an actus reus.
In R v G, the defendant argued that the imposition of strict liability had breached his rights under Article 6(2) – however, these human rights arguments were rejected by both the Supreme Court and the European Court of Human Rights.
- Labelling – Some argue that defendants who know that they are engaging in unlawful sexual activity with a child are more culpable than defendants who believe that they are not and that their conduct is lawful; however, the current approach labels both of these defendants with the same offence.
For Strict Liability in these cases
- Child protection – In R v G, Baroness Hale’s judgement made it clear that these offences exist to protect children – not only from predatory adults, but also from “premature sexual activity of all kinds”. The strict liability approach preserves that protection by criminalising all sexual intercourse with a child under the age of 13, making sure that no cases slip through the net.
- Proportionality – It has been argued that this strict liability approach is necessary and proportionate in order to ensure that young children are protected from the ‘serious physical and psychological harm’ of premature sexual activity. The risk of exposing children to this harm is said to outweigh any risk of unfairness to defendants.
- Prosecutorial discretion – The CPS have the discretion to decide whether to prosecute, and what to charge the defendant with. This means that the application of this strict liability isn’t automatic; before the defendant is ever charged, the CPS will first consider whether it is in the public interest to prosecute them.