Laws are changing and becoming stricter day by day with the passage of time and the advancements in the approaches towards committing crimes, whether it's a crime of sexual assault or any other, the laws are also advancing and are catching fast with the crimes in order to provide the deserved justice to the committed crime and offenders. This study is carried out in order to understand the Sexual Offences Act 2003, the amendments, its impact and different codes, followed by the case of Duncan and Claire making it easy for the reader to understand the nature of the case and the role of imposed changes that may be applicable and helpful to resolve the case. (Home Office (2008))
The Sexual Offences Act (SOA) 2003 came into force on 1 May 2004. Part 1 creates a number of new sexual offences. It also includes a large number of pre-existing offences, some of which have been redefined and/or have revised maximum penalties. (Hornick, J. (2006))
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The Criminal Justice Act (CJA) 2003 provides1 that the seriousness of an offence should be resolute by two chief strictures: the guilt of the criminal plus the damage resulted, or menaced, by the crime, by means of the impact on the sufferer(s). The Sentencing Guidelines Council guideline on seriousness provides that the seriousness of an offence is to be determined according to the comparative impact of the fault of the criminal as well as the real or predictable damage caused to the sufferer. Where there is an inequity flanked by responsibility in addition to impairment, the guilt of the criminal in the meticulous situation of a person's case have to be the primary issue in shaping the significance of the crime. (Home Office (2008))
Apart as of the offence of rape which, when charged as a primary offence, is confined to male defendants, the SOA 2003 makes no distinction in terms of liability or maximum penalties for male plus female offenders. The guidelines are proposed on the grounds that they have to apply irrespective of the sex of the sufferer or of the criminal, apart as of in particular situation where a division is warranted by the character of the crime. (Brown, B., Burman, M. plus Jamieson, J. (2007))
The harm caused by sexual offences:
All sexual offences where the activity is non-consensual, coercive or exploitative result in harm. Harm is also inherent where victims ostensibly consent but where their capacity to give informed consent is affected by their youth or mental disorder. (Home Office (2008))
The effects of sexual offending might be physical and/or psychological. The physical effects - injury, pregnancy or sexually transmitted infections - might be very serious. The psychological effects might be equally or even more serious, but much less obvious (even unascertainable) at the time of sentencing. They might include any or all of the following (although this register is not proposed to be complete plus matter are not scheduled in any form of main concern):
• Violation of the victim's sexual autonomy
• Inability to trust
• Inability to form personal or intimate relationships in adulthood
• Self harm or suicide
The offender's culpability in sexual offences:
According to the Council's guideline on seriousness, responsibility is resolute by the degree to which the criminal means to cause damage - the bad the impairment intended, the bigger the criminal's responsibility. Sexual crimes are rather diverse in that the offender's intent might be to get sexual satisfaction, fiscal increase or a number of other consequences, somewhat than to hurt the sufferer. Though, where the action is in some way non-consensual, coercive or unfair, the crime is intrinsically damaging plus as a result the offender's responsibility is high. Preparation of a crime makes the criminal further highly guilty than appealing in opportunistic or impetuous aberrant. (HMCPSI/HMIC (2003))
In common, the complexity of assessing significance where there is an inequity flanked by guilt plus impairment does not arise in relation to sexual offences. Though, some offences in the SOA 2003 are defined in terms of the offender's intention to commit an offence that does not, in fact, take place, for example the 'incitement offences', the 'preparatory offences' and the new crime of 'meeting a child subsequent sexual grooming etc'. (HMCPSI/HMIC (2003))
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In such cases, the level of actual harm to the victim might be lower than in cases involving the commission of a physical sexual offence. Here the level of culpability will be the main issue in shaping the significance of the crime, by means of the degree of harm that could have been caused to an individual victim, and the risk posed to others by the offender, being integral to the sentencing decision. (HMCPSI/HMIC (2003))
The culpability of young offenders:
The SOA 2003 makes special provision for young offenders found guilty of certain sexual offences - namely those in the 'ostensibly consensual' category - by providing that offenders aged under 18 will face a maximum penalty of 5 years' detention, as opposed to the maximum 14 years for offenders aged 18 or over. These are dealt by means of in Part 7 of the guideline.
The age of the offender will also be significant in the sentencing exercise in relation to non-consensual offences, where no special sentencing provisions have been provided for in the legislation. Its significance is particularly acute in relation to the strict liability offences such as 'rape of a child under 13', where the maximum penalty is life imprisonment, especially if an criminal is very immature plus the difference in age flanked by the criminal and the sufferer is very little. (Gregory, J. plus Lees, S. (2006))
RAPE AND ASSAULT BY PENETRATION:
The SOA 2003 has redefined the offence of rape so that it now includes non-consensual penile penetration of the mouth and has also introduced a new offence of 'assault by penetration'. Parliament agreed the same maximum penalty of life imprisonment for these offences.
It is impossible to say that any one form of non-consensual penetration is inherently a more serious violation of the victim's sexual autonomy than another. The Council therefore has determined that the sentencing starting points established in Mill berry should apply to all non-consensual offences involving penetration of the anus or vagina or penile penetration of the mouth. (Brown, B., Burman, M. plus Jamieson, J. (2007))
5 years is intended to be the starting point for a case involving an adult victim raped by a single offender in a case that involves no aggravating factors at all.
8 years is the suggested starting point where any of the particular aggravating factors identified in the offence guidelines are involved.
where identified aggravating factors exist and the sufferer is a child aged 13 or in excess of but below 16, the recommended starting point is 10 years;
For the rape of a child under 13 where there are no aggravating factors, a starting point of 10 years is recommended, rising to 13 years for cases involving any of the particular aggravating factors identified in the guideline. (Gregory, J. plus Lees, S. (2006))
These are starting points. The existence of aggravating factors might significantly increase the sentence. The new sentences for public protection are intended to guarantee that sexual reprobates are not liberated into the society if they present a major danger of grave impairment.
Assault by penetration
Factors to take into concern:
The verdicts for community defence have to be measured in all cases of assault by penetration. They are intended to guarantee that sexual reprobates are not liberated into the society if they present a noteworthy risk of severe harm. Inside any indeterminate sentence, the minimum term will generally be half the appropriate determinate sentence.
The starting points will be relevant, therefore, to the process of fixing any minimum term that might be necessary. (Gregory, J. plus Lees, S. (2006))
This offence involves penetration of the vagina or anus only, by means of objects or body parts. It might include penile penetration where the means of penetration is only established during the trial.
All the non-consensual crimes involve a elevated level of responsibility on the fraction of the criminal, because that individual will have acted either intentionally devoid of the victim's permission or devoid of giving due care to whether the sufferer was capable to or did, in fact, approved.
The preparation of a crime designates a superior level of responsibility than an opportunistic or impetuous crime. (Chambers, G. plus Millar, A. (2004))
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A criminal's responsibility might be abridged if the criminal as well as victim betrothed in consensual sexual action on the equal juncture plus immediately prior to the crime took place. Issues pertinent to responsibility in such conditions comprise the kind of consensual action that happened, resemblance to what then happens, plus timing. Though, the significance of the non-consensual act might devastate any other thought.
The seriousness of the violation of the victim's sexual autonomy might depend on a number of aspects; though the nature of the sexual conduct will be the chief pointer of the level of damage caused in the initial example. (Brown, B., Burman, M. plus Jamieson, J. (2007))
The existence of any of the common infuriating issues recognized in the Council directive on importance or any of the supplementary factors recognized in the guidelines will point to a verdict over the usual preliminary point.
Brief penetration by means of fingers, toes or tongue might result in a significantly lower sentence where no physical harm is caused to the victim.
Various activities previously covered by the offence of 'indecent assault' now fall inside the definitions of other offences in the SOA 2003:
Forcible penile penetration of the mouth now comes inside the definition of 'rape'.
Penetration of the vagina or anus by means of a body part or other object is covered by the offence of 'assault by penetration'.
All forms of ostensibly consensual sexual activity involving children under 16 (who cannot in law give any consent to prevent an act being an assault) now fall inside a range of child sex offences.
Vulnerable adults subjected to a sexual assault are now protected by the offences of 'sexual action by means of a person by means of a mental disorder impeding alternative' plus 'causing or provocative a individual by means of a mental disorder impeding option to appoint in sexual action'.
The offence of 'sexual assault' covers all forms of sexual touching and will largely be used in relation to the lesser forms of assault that would have previously fallen at the lower end of the penalty scale. (Chambers, G. plus Millar, A. (2004))
The exact nature of the sexual activity should be the key factor in assessing the seriousness of a sexual assault and should be used as the starting point as of which to begin the process of assessing the overall seriousness of the offending behaviour.
The presence of aggravating factors can make an offence significantly more serious than the nature of the activity alone might suggest.
Causing sexual activity devoid of consent
Factors to take into deliberation:
The verdicts for community defence have to be measured in all cases of causing sexual action. They are intended to warrant that sexual criminals are not unconfined into the society if they present a major risk of serious damage. Inside any undefined verdict, the least term will usually be half the suitable determinate verdict.
The starting points will be relevant, as a result, to the process of fixing any minimum term that might be necessary.
The same degree of seriousness applies whether an offender causes an act to take place, incites an act that actually takes place, or incites an act that does not take place only because it is prevented by factors beyond the control of the offender. (Brown, B., Burman, M. plus Jamieson, J. (2007))
The same starting points apply whether the activity was caused or incited and whether or not the incited activity took place, other than a number of reductions will generally be appropriate when the incited activity does not, in fact, take place.
Where an offender voluntarily desists as of any action taken to incite a sexual act or personally, and of their own volition, intervenes to prevent as of taking place a sexual act that he or she has incited, this must be dealt as a extenuating aspect. (Chambers, G. plus Millar, A. (2004))
The effect of the incitement is relevant to the length of the sentence to be imposed.
A court should take into account the degree to which the intended victim might have suffered as a result of knowing or believing that an offence would take place.
Duncan and Claire case though is unique but the Sexual Offences Act (2003) has got solutions for incidents like these as mentioned above while giving an explanation of what the sexual offences act says regarding the sexual offences that are made, by the offenders without any consent. In the case of Duncan and Claire the situation was poised because it was matter of blaming each other for sexual offences until the witnesses were introduced the case the age difference between Claire and Duncan is 19 years as Duncan is 19 years younger than Claire, though the claim from Claire states that Duncan has tried to abuse her by penetrating her vagina using his finger and the court is aware of the fact that Duncan was caught with this obligation in the past as well with a similar case two years back but this time the allegation from Claire is not that strong as the witnesses are telling a bit different from what Claire has claimed.
According to the evidence of Matthew, he and Claire have been involved in an affair which is from the last six months and Mathew himself is a 19 year old boy who works at the bar, and the evidence from Walter also makes it simple and clear that the claimant Claire is the actual offender as she is basically targeting young boys and then make an attempt to drive them to turned out to be part of this unique manner of prostitution, where she wants them to be involved with her in the sexual activities she may have planned.
The case of Duncan gives a clear indication of flirting with each other and on Claire's insist Duncan may have refused her resulting in making Claire angry and she deciding to react in that manner, by taking him to court by means of the blame of penetration of her vagina by using fingers. She may be sentenced and will have to face the verdict of life imprisonment while Duncan may also be kept under strict observation. Where he may have to report on weekly as well as monthly basis to the local police station, the law amendments and up gradation has made it easier for the legal authorities to understand and act according to the different types of sexual assaults and or offences that might take place in the modern society. This has in addition made it easier for the legal bodies to show an improved level of just decision devoid of making any errors.
Bad character and the admissibility of the evidence:
One of the mainly famous principles of English law is that an individual 'have to not be judged tirelessly by orientation to the overwhelming spirit of his precedent life.' This very well recognized custom has led to the oft-cited law of evidence rule which forbids dependence upon an character's personality or evidence of previous instances of misconduct when they are extended to confirm that a person acted in a way be relevant his nature on the juncture in difficulty. English law has dealt through the question of an accuser's disposition for centuries as well as a rich wealth of influence exists to prove to this. Similarly the case of Duncan and Claire if we look in to their case in the light of the gateways under section 101 of the Criminal Justice Act 2003 their previous conviction may go against them and the evidence may become even more stronger, resulting in heavy and strict verdict from the court. However, the admittance of evidence and crime may result in a less strict verdict from the court. In this unique case where Duncan has been part of a conviction in the past, and Claire has also been witnessed a couple of times, the characters Duncan and Claire are equally accountable and due to the new amendments they both might go under strict observation and also face the threat of life imprisonment sentence.
The Criminal Justice Act 2003 makes serious transforms to the law concerning to the admissibility of bad character evidence as observes together defendant plus non-defendant eyewitnesses. Apart as of featuring the basis below which bad character evidence might be tendered, the law in addition initiates conviction into the standards which rule this quarter of the regulation by eliminating the widespread law rules a number of which were obscured plus needed exactness. even as in a number of deference's the matters that might come up for admissibility have been increased, these transforms are accompanied by means of fairly far-reaching practical and substantive defends to guarantee that the evidence submitted has considerable probative worth as opposed to its harmful character. The laws cannot definitely be typified just as being missionary or inclusionary as they unite together constituents. Though, the novel rules must help secure the defendant's right to a just trial as offered below the Human Rights Act 1998 plus the European Convention on Human Rights. It is hard at this phase to forecast how the courts will understand plus relate the novel stipulations. Perceptibly, one expects that the courts will not create case rule that confuses the previously widespread laws below the Criminal Justice Act 2003.