Sexual Offences - Avoiding Patient Allegations of Sexual Assault

Originally published in April 2003

In an age where healthcare professionals are under increasing pressure to justify their clinical decisions and actions, it is imperative that they are aware of the present law on sexual assault and rape and the proposed reforms. This article provides a brief synopsis of the current law of rape and indecent assault and draws attention to the new Sexual Offences Bill.

Current law

Under s.1 of the Sexual Offences Act 1956 it is an offence for a man to rape a woman or another man. Rape is committed if he has sexual intercourse with a person (whether vaginal or anal)who at the time of the intercourse does not consent to it, and at the time he knows that the person does not consent to the intercourse, or is reckless as to whether the person consents to it.

When considering the defence of ‘consent ’the House of Lords in DPP v Morgan¹ determined that the defendant ’s belief in the complainant ’s consent needed to be an honest one although not necessarily reasonable. However, subsequent legislation in s.1 Sexual Offences (Amendment) Act 1976 ensured that a jury could take account of the circumstances at the time to consider whether the defendant could have honestly held that belief. This section did not affect the general principle that it was for the complainant to adduce evidence of her lack of consent, and such evidence may include assertions that threat or force was used, or evidence that by reason of drink, drugs, sleep, age or mental handicap, the complainant was unaware of what was occurring and/or incapable of giving consent. In cases where the alleged sexual assault has not involved penile penetration, the act may amount to assault under s.14(1) Sexual Offences Act 1956 where the circumstances are considered as ‘indecent ’by a right-minded individual and where it can be shown that the defendant intended to commit the assault.

Such circumstances may be proven by facts relating to the relationship of the defendant to the complainant and how and why the defendant has come to embark on the alleged course of conduct. The above principles in relation to consent and its related defence would apply to allegations of indecent assault.

It is against this background that the Sexual Offences Bill was drafted. This bill was introduced to the House of Lords on 28 January 2003 and establishes the following new offences:

1.The offence of rape will be broadened so that it encompasses penile penetration in general i.e. of the mouth, anus and/or vagina.

2. A new offence of sexual assault by penetration (non-penile)of the anus and genital area. Both this offence and rape (as in (1)above)would carry a maximum penalty of life imprisonment.

3. A new offence of sexual assault would be created to replace all other non-penetrative sexual touching which is currently contained in the offence of indecent assault.

Clearly the offence of sexual assault by penetration will have the most serious implications for healthcare professionals as this could cover the circumstances in which a patient is internally examined by instrument or digit(s).

The Sexual Offences Bill does, however, acknowledge that there may be legitimate reasons for internal examinations and the Bill requires that the penetration is ‘sexual ’before an offence is established. Clause 80 of the Bill states that an activity is sexual if:

a)the reasonable person considers that the nature of the activity may (at least)be sexual, and b)the reasonable person would consider that it is sexual because of its nature, circumstances or the purpose of any person in relation to it (or all or some of these considerations)

This clause is clearly relevant to healthcare professionals and allows the opportunity for demonstration that the activity was not of a sexual nature and, furthermore, that the patient consented to it. Although some may automatically assume that an intimate examination in a doctor ’s surgery is not of a sexual nature, with increasing numbers of allegations of inappropriate conduct against doctors, examination in a surgery (i.e. circumstances and purpose)cannot always be considered as an automatic defence to such a charge. We have suggested a number of practical considerations below to ensure that readers are aware of the protection offered by clause 80.

As with current legislation, the absence of consent is a fundamental component of the above offences. The bill sets out, at clause 78,a non-exhaustive list of circumstances where consent cannot be deemed to be present including, but not limited to, where a person:

a)submits or is unable to resist because of force or fear of force b)was asleep or otherwise unconscious c)could not communicate whether they consented due to a physical disability d)did not understand or was deceived as to the nature and purpose of the act

An offence is established where a Defendant did not believe that the Complainant was consenting, was reckless as to their free agreement or did not even consider whether they freely agreed at the time.

Increasing awareness of the abuse of vulnerable people have led to proposed criminal offences relating to those with mental disorders and learning disabilities. The Bill establishes an offence for a care worker (whether paid or unpaid)to engage in or incite any sexual activity with such individuals (whether in-patient or out-patient).The definition of care workers includes those who work in care homes, for independent clinics and NHS bodies who regularly provide care to the patient. These offences have a statutory defence of pre-existing relationships.

In summary, it is becoming all the more important for doctors to ensure that they have arrangements in place, including chaperons, to provide themselves with adequate protection should allegations of sexual assault be made. Therefore, on a practical basis, healthcare professionals must ensure that their patients are aware of the extent of any examination to be undertaken and the methods that will be used. Most importantly, it is vital that doctors ensure, and record where possible, the fact that the patient has freely consented and agreed to the examination in the first place.