This advice will outline the potential criminal liability of Rory and Kasra based on the events described. Each individual’s conduct will be assessed separately against the relevant criminal offences in England and Wales.
The Criminal Liability of Rory
Burglary
Rory may have committed burglary under section 9 of the Theft Act 1968. Section 9(1)(a) requires proof that a defendant entered a building as a trespasser with intent to steal, inflict grievous bodily harm (GBH), or cause criminal damage.
Rory enters Lizzie’s house by pushing open a closed door without permission, which makes him a trespasser (R v Collins [1973] QB 100). The key issue is whether he had the necessary ulterior intent at the time of entry. The facts state he "has a look around", which on its own does not clearly establish an intent to commit one of the specified offences. The prosecution may find it difficult to prove this mens rea element beyond a reasonable doubt, as he did not subsequently commit any such act. Therefore, a charge under s.9(1)(a) is unlikely to succeed. A charge under s.9(1)(b) would also fail, as this requires the commission or attempted commission of theft or GBH after entering, neither of which occurred.
Voyeurism
Rory’s actions inside the bedroom may constitute voyeurism, contrary to section 67 of the Sexual Offences Act 2003 (SOA 2003). The actus reus requires observing another person in a private act for the purpose of sexual gratification. A private act is one which a reasonable person would consider private, and which occurs in a place reasonably expected to provide privacy (s.67(2)). Lizzie, being asleep in her own bed, was engaged in a private act. Rory observed her after raising her nightclothes, and the context suggests this was for his sexual gratification.
The mens rea is that Rory knows the person does not consent to being observed for his sexual gratification. As Lizzie was asleep, she could not consent, and Rory would have known this. Therefore, a charge of voyeurism appears to be very likely to succeed.
Sexual Assault
Alternatively, Rory could be charged with sexual assault under section 3 of the SOA 2003. This requires the intentional sexual touching of another person without their consent. The touching does not have to be direct; it can be through clothing (s.79(8)). By pulling aside the bedclothes and raising Lizzie’s nightclothes, Rory has arguably "touched" her. The act of exposing her naked body is clearly sexual in nature. As Lizzie was asleep, she could not consent, and under section 75(2)(d) of the SOA 2003, it would be presumed that she did not consent and that Rory did not have a reasonable belief that she did. This charge is therefore also a strong possibility.
The Criminal Liability of Kasra
Burglary
Kasra entered Lizzie’s house by deceiving her as to his purpose. Consent to entry obtained by fraud can be negated, making the entrant a trespasser (R v Jones & Smith [1976] 1 WLR 672). Kasra had permission to enter to give an estimate, but he arguably entered with the ulterior motive of committing a sexual offence, a purpose far outside the scope of the permission given. If it can be proven that he intended to commit rape upon entry, he would be a trespasser and could be liable for burglary under section 9(1)(a) of the Theft Act 1968. Rape has been held to involve the infliction of GBH (Herring, 2022), satisfying the ulterior offence requirement. Proving his intent at the point of entry may be an evidential challenge, but Rory's prior comments provide a motive.
Rape
Kasra’s primary liability is for rape under section 1 of the SOA 2003. The actus reus is the intentional penetration of the vagina, anus or mouth with a penis, where the complainant does not consent. The facts state Kasra had "sexual intercourse with her", satisfying penetration. Lizzie clearly did not consent; she was shocked, tried to escape, and explicitly protested by telling him to "stop".
The mens rea for rape is that the defendant intentionally penetrates and does not have a reasonable belief in consent (s.1(1)(c)). Kasra might argue that he believed she was consenting, based on Rory’s lies and his misinterpretation of her stalling tactic as encouragement. However, this belief must be reasonable in all the circumstances (s.1(2)). Any initial belief would have been rendered unreasonable the moment Lizzie attempted to leave and verbally protested. Furthermore, the use of force ("pushes her onto the hallway floor") engages the evidential presumption under section 75(2)(a) of the SOA 2003. This presumes a lack of consent and a lack of reasonable belief, which Kasra would find almost impossible to rebut given the facts. A prosecution for rape has a very high prospect of success.
Assault
The act of pushing Lizzie to the floor constitutes a battery (the application of unlawful force). While this force is part of the rape offence, it could also found a separate, lesser charge of battery or potentially assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861 if any injury was caused.
Conclusion
The CPS is advised that there are strong grounds to prosecute both individuals. Rory should be charged with voyeurism under s.67 SOA 2003, and alternatively with sexual assault under s.3. Kasra should be charged with rape under s.1 SOA 2003, which is a very strong case. A further charge of burglary under s.9(1)(a) Theft Act 1968 could also be brought against Kasra, though proving the requisite intent at the time of entry may be more difficult.
References
- Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford University Press.
- R v Collins [1973] QB 100
- R v Jones & Smith [1976] 1 WLR 672
- Offences Against the Person Act 1861
- Sexual Offences Act 2003
- Theft Act 1968
