Abstract
Section 78 Sexual Offences Act (SOA) 2003 describes the circumstances in which a penetration, touching or any other activity is treated as being “sexual” for the purposes of the SOA. It prescribes that such activity is sexual if a reasonable person would consider that (a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual. Abdulahi concerns a relatively narrow circumstance where the question of whether the “odd behaviour” of a defendant, brought about by low blood sugar, affected the application of the test in s 78. Closer scrutiny of Abdulahi also brings into question whether the law in s 78 was applied accurately.
The appellant, Abdulahi, (A), was charged with sexual assault, contrary to s 3 SOA 2003 (Count 1), and common assault, contrary to s 39 Criminal Justice Act 1988 (Count 2). Having allegedly attempted to punch a pedestrian (what would eventually become Count 2), A was taken into custody. A's behaviour was described as “grandiose and flamboyant or simply drunk” (at [3]) and, as a result, he was examined by a nurse in the custody centre. The nurse, referred to in the judgment as “CS”, examined A and concluded that his blood sugar level was low, measuring at 2.1 millimoles per litre (mmol) (the normal range being between 5–8 mmol). Having prescribed glucose gel and food and drink, CS reassessed A four hours later, retesting his blood sugar levels. Concluding that his blood sugar levels were within the normal range, CS proceeded to examine A. CS accepted that A's behaviour was still somewhat strange, explaining that his mannerisms had not changed, with A still being flamboyant and saying “odd things”. Despite this, however, A looked better, was able to communicate with CS, and understood why he was in the medical room.
During the examination, A was alleged to have raised his arm, and placed the back of his hand on CS’ right breast. Whilst it was confirmed by CS that no grabbing of the breast took place, the touching did last a number of seconds, with CS in evidence contending that it could not have been accidental. CS reported the matter to the police; A was subsequently charged with sexual assault.
At trial, A pleaded not guilty. In respect of Count 1 (the alleged sexual assault), A contended that he did not intentionally touch CS’ breast. Rather, A accepted that he may have moved his arms around and, as a result, accidentally brushed against CS. A contended that whilst he had no recollection of the matter, if any such touching did take place, it was entirely accidental. The prosecution's case was that A's touching was deliberate. In respect of Count 2 (the alleged common assault), A denied that he had attempted to strike the pedestrian, claiming that he had no recollection of any confrontation with the pedestrian. If such confrontation did occur, then A was unable to control his actions by reason of his low blood sugar.
The learned trial judge, His Honour Judge William Mousley QC, withdrew the defence of non-insane automatism from the jury in respect of Count 1, on the basis that A's blood sugar levels had returned to normal by the time the offence was allegedly committed. In his summation to the jury (at [24] of the judgment), the learned trial judge directed them in accordance with s 78(a) that the sole question for them to consider was whether A intentionally touched CS. Whilst not clear from the transcript available, it would appear that the defence of non-insane automatism was permitted to go before the jury in respect of Count 2. No further discussion on Count 2 is present in the judgment as no appeal against the Count 2 conviction was made.
A was subsequently convicted on both counts, and was awaiting sentence at the time of the appeal.
On appeal, A alleged that the trial judge was wrong not to leave the defence of non-insane automatism to the jury in respect of Count 1. He also submitted that the judge “over simplified” the issues for the jury as to whether the touching was sexual. Counsel for the defence abandoned the first ground, focusing solely on the second.
In summary, A contended that the trial judge should have directed the jury in accordance with s 78(b), namely that they had to be sure that (i) that by its nature the touching may be sexual and, (ii) that because of its circumstances or the purpose of any person in relation to it (or both) it was sexual. A contended that, given his continuing odd behaviour, the issue of whether his touching was unambiguously sexual was not “clear cut” (at [27]). As a result of this, the learned trial judge should have directed the jury to consider A's purpose for the touching, and the surrounding circumstances. In contrast, the Crown submitted in response that the touching of a woman's breast was, by its nature, sexual within s 78(a). Furthermore, given that the defence's case was that no touching took place or, if it did, it was accidental, it made sense for the sole issue placed before the jury to be whether the touching was intentional.
In the light of [the] clear evidence, the Judge was entitled to take the view that a reasonable person would consider the nature of the act itself, i.e. the deliberate touching of a woman's breast in the manner described, was obviously and inevitably sexual (emphasis added)
A's submission, that his continuing odd behaviour brought s 78(b) into contention, was met with rejection. His Lordship swiftly explained that to characterise the touching as “non-sexual” due to A's odd behaviour (at [36]): seeks illegitimately to import an extraneous consideration into the simple question posed by section 78(a), namely whatever its circumstances or his purpose in relation to it, the touching was because of its nature sexual. (original emphasis)
His Lordship would conclude that s 78(a) was, in their view, ‘designed to obviate just this sort of extraneous argument as to motive or other considerations.’ (at [36])
In conclusion, Haddon-Cave LJ found that the nature of the act spoke for itself: CS was immediately sure that she had been sexually assaulted, and the reasonable person would have been sure too. As such, the act was, by its nature, sexual and the only issue for the jury was whether A intentionally touched CS. This was a matter of fact open to the jury to find, which they did. As a result, the Court of Appeal dismissed the appeal, finding the conviction to be safe (at [38]).
Commentary
Abdulahi appears, at first, to be an uncontroversial case acting as a simple restatement of the test in s 78, and its application. However, the application of s 78(a) to the instant case is somewhat troubling. In particular, the issue that falls for comment is whether the touching of a woman's breast is “inevitably” sexual.
Touching a Woman's Breast: Unambiguously Sexual?
Section 78 seeks to provide a framework to deal with the concept of “sexual” in the same manner as the House of Lords did in R v Court [1989] AC 28. The test propounded in s 78(a) must be applied without consideration for the circumstances of the activity, or the purpose of any person in relation to it. The test does not involve a consideration of a defendant's mens rea in respect of an act being sexual; it is an objective test. The test does not ask whether the activity is capable of being sexual; it asks whether it is obviously sexual.
The test itself appears relatively straightforward: is the activity unambiguously sexual? As suggested by the Crown in the instant case, some touchings, by their very nature, are inherently sexual. For example, oral sex is unlikely to provide any benefit other than sexual gratification. Penile penetration bears no relevance other than for a sexual purpose. Such activity is sexual irrespective of a defendant's purpose or the circumstances surrounding those activities. Likewise, there are certain activities which are not, by their nature, sexual (such as touching a complainant's foot), even if the defendant has a foot fetish and gains sexual pleasure from touching feet (see the pre-2003 case of R v George [1956] Crim LR 52, for example).
In Abdulahi, Haddon-Cave LJ explained that the learned judge was ‘entitled’ to find that the act of touching a woman's breast was ‘obviously and inevitably sexual’. (at [35]) Such language, and reference to ‘inevitably sexual’, is consistent with the wording of Lord Woolf CJ in R v H [2005] EWCA Crim 732; [2005] 2 All ER 859 at [8]. However, the matter of concern in the instant case is whether it is truly “inevitable” that the touching of a woman's breast will be sexual. To treat the act of touching a woman's breast as inevitably sexual is problematic in a number of circumstances. For instance, it renders any touching by a doctor conducting a bona fide medical examination as sexual. It treats the piercing/ tattoo artist, applying their trade to an adult woman's breast, as having touched another sexually. Whilst these individuals would not be liable for criminal offences, due to the presence of consent in these examples, it remains troubling that the effect of the instant case appears to treat any touching of a woman's breast as being inevitably sexual.
One may read Abdulahi as a statement that it was the touching of CS’ breast, in that particular case, which was inevitably sexual. That therein is where the problem lies: the Court of Appeal, like the trial judge below, appears to apply s 78(a) in the context of the circumstances in which the touching occurred. In particular, at [35], Haddon-Cave LJ speaks of the touching of a woman's breast ‘in the manner described’. Indeed, in R v H, Lord Woolf CJ, in accepting that s 78(a) was not applicable, explained that ‘[t]he nature of the touching with which we are concerned was not inevitably sexual.’ (emphasis added). Counsel for the appellant submitted that the question of whether the touching was unambiguously sexual was not ‘clear cut’ because of A's odd behaviour. This seems to suggest that had it not been for A's odd behaviour, counsel would have conceded that the act of touching CS’ breast was unambiguously sexual. However, s 78(a) is clear that the activity must be considered ‘whatever its circumstances or any person's purpose in relation to it’ (emphasis added). A literal interpretation of this provision suggests that s 78(a) must be read as meaning that the touching or activity is to be considered entirely objectively and separate from any of the facts of case before it. Indeed, the editors of Blackstone's Criminal Practice (OUP 2022), explain that the activity must be considered ‘without reference’ to the circumstances or purpose of any person (at para B3.58). The question to ask is whether the touching of a woman's breast is inevitably sexual, as opposed to the touching of this particular woman's breast in these particular circumstances.
To consider the “odd behaviour” of A in the instant case, in order to identify whether the activity is, or is not, inherently sexual distorts the statutory purpose of s 78(a). Indeed, Bantekas (‘Can Touching Always Be Sexual When There is No Sexual Intent?’ (2008) 72(3) J Crim L 251), explains that the courts are asked ‘to identify and objectify particular forms of touching as being inherently sexual’ (at 254). This would seem to accord with the argument of counsel for the Crown who Haddon-Cave LJ cited as having argued that ‘the nature of the act itself, the touching of a woman's breast, was by its nature sexual’. (at [28] emphasis added) The segregation of circumstance and purpose from s 78(a) is furthered by para 146 of the Explanatory Notes to the SOA 2003, which identifies that s 78(a) ‘covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse.’ (emphasis added) Reference to an activity always being considered as sexual dictates that the circumstances in which that activity takes place cannot be considered. As his Lordship explained, s 78(a) is indeed ‘designed to obviate’ any ‘extraneous argument as to motive or other considerations.’ (at [36]) However, the (rightful) contention in this case that A's ‘odd behaviour’ should be discounted in respect of s 78(a) does not then axiomatically render the touching “sexual”. Putting it simply: if the reasonable person can only consider the activity to be sexual by observing the circumstances in which it occurred, then the activity cannot fall within s 78(a).
Did the Court of Appeal apply s 78(a) with the circumstances of A's touching of CS in particular in mind? Is it possible to discern and separate the circumstances of the instant case, from the question posed in s 78(a)? Bantekas suggests not, identifying that (at 254) ‘no form of touching is sexual by nature, but is instead dependent on context’. He gives the example of nudity, the exposure of genitals, and the removal of an individual's clothing, identifying that neither are ‘certain’ cases of “sexual” touching. Providing the example of nude models posing for artistic purposes, and models exposing their bodies for public awareness campaigns, Bantekas reasons that (at 253): it is the context that renders nudity sexual and it is not the case that nudity is in any event inherently sexual irrespective of the circumstances in which it arises.
Indeed, a multitude of examples exist where a touching has taken place and, prima facie, the hypothetical reasonable person may jump to the conclusion that the touching is sexual. However, observing the circumstances in which the touching took place would thereafter bring into doubt its unambiguously sexual nature. For example, should you ask the reasonable person whether the ripping off of a woman's dress in public is unambiguously sexual, the reasonable person would likely answer “yes”. However, should you then inform them that the woman's dress was on fire at the time, the reasonable man's response is likely to be different (with thanks to Michael Jefferson at the University of Sheffield for this example). The same is true for the touching of a woman's breast. Given the vast variety of circumstances in which such touching may take place, it cannot be said that the touching of a woman's breast is “inevitably sexual”. Indeed, para 146 of the Explanatory Notes to the SOA 2003 gives the example of digital penetration, identifying it as falling outside of the remit of s 78(a) due to the circumstances of the case before a court. In particular, para 146 provides: But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (eg a doctor's surgery) and the purpose of any of the participants (if the doctor's purpose is medical, the activity will not be sexual; if the doctor's purpose is sexual, the activity also is likely to be sexual).
As an aide to statutory interpretation, the Explanatory Note is useful to identify what, according to the government department responsible for the subject matter of the Act, s 78(a) sets out to achieve. In light of this, if the Explanatory Notes to the SOA 2003 identify digital penetration of the vagina as being an activity falling outside of s 78(a), and squarely within s 78(b), on what basis can the touching of a woman's breast be considered unambiguously sexual?
It is our contention, therefore, that the Court of Appeal erred in their reasoning. The touching of a woman's breast, devoid of the circumstances of the touching or the purpose of any person, is not bound to be sexual. As a result, it was inappropriate to apply s 78(a) to the instant case. Rather, the trial judge, and Court of Appeal thereafter, should have considered the second limb of the test contained in s 78(b). It is not considered, however, that the use of s 78(b) would have made any difference to the outcome of the instant case. Having regard to the circumstances in which the touching took place, the nature of that touching and any potential purpose of A, it is suggested that a jury would have been satisfied that the touching was objectively sexual. With that in mind, the conviction would have remained safe, with the jury still being tasked to assess whether the touching was nonetheless intentional.
It was wrong, therefore, to find that s 78(a) was applicable in the instant case. No reasonable person would suggest that the touching of a woman's breast is always sexual in nature; it would depend on the circumstances. If a reasonable person were to be asked whether the act of a man touching a woman's breast was inherently sexual, the inevitable question that would follow would be “why was he touching it?”. The same question would not be asked if the question concerned, for example, penile penetration of a mouth. Section 78(a) requires the court to consider the nature of the activity divorced from its circumstances, and divorced from any person's purpose in respect of it. In light of this, it cannot be the case that s 78(a) is brought into play in the context of the touching of a woman's breast. This is a situation requiring a consideration of the nature, circumstances, and purpose of the touching in order to determine whether the touching was indeed sexual.
Conclusion
Prima facie, Abdulahi serves as an interesting application of s 78 SOA 2003 to the particular circumstances of a defendant. It seems to act as a reminder that where an activity is, by its nature, sexual, it should not matter what the circumstances or characteristics of the defendant are. Rather, the more relevant question is, as correctly directed by the learned trial judge in the instant case, whether a defendant intentionally touched a complainant. However, on a closer reading, Abdulahi is of some concern. It would appear as though the Court of Appeal has applied s 78(a) with regard given to the circumstances in which the touching took place. To treat the touching of CS’ breast as inevitably sexual is the wrong test; the Court should have asked whether the touching of a woman's breast generally was inevitably sexual. Given the vast array of circumstances in which such touching can take place, at least some of which are not sexual in nature, the only logical conclusion was that whether such touchings are sexual is dependent on the nature, purpose and circumstance of the activity concerned.