This advice will analyse the potential criminal liability of John for two separate incidents. The first incident involves John following a woman into a shower while naked and refusing to leave. The second, on a different occasion, involves John pulling down a six-year-old child's trousers and slapping their bare bottom. The analysis will focus on non-fatal, sexual offences, primarily governed by the Sexual Offences Act 2003 (SOA 2003). Each incident will be considered in turn to establish which, if any, charges could be brought against John.
Incident 1: The Shower
John’s actions in following a woman into a shower, being naked, and refusing to leave until the arrival of others, give rise to potential liability for several offences under the SOA 2003. The most likely charges are exposure and voyeurism.
Exposure under Section 66 of the Sexual Offences Act 2003
The offence of exposure is created by section 66(1) of the SOA 2003. A person (A) commits an offence if: (a) he intentionally exposes his genitals, and (b) he intends that someone will see them and be caused alarm or distress.
To establish the actus reus of this offence, the prosecution must prove that John intentionally exposed his genitals. The facts state that John was ‘naked’ when he followed the woman into the shower. This clearly satisfies the element of exposing his genitals. The exposure must also be intentional, which can be readily inferred from his state of undress in such a location.
The mens rea requires two elements of intention. First, John must intend for someone to see his genitals. By following the woman into the enclosed space of a shower, it is a very strong, almost unavoidable, inference that he intended for her to see him. It is not an accidental encounter; his presence is deliberate.
Secondly, and more crucially, John must intend for the person seeing his genitals to be caused alarm or distress. This is a subjective test relating to the defendant’s intention, not the victim’s reaction, although the victim’s reaction can be evidence of the defendant’s intention (Ormerod and Laird, 2021). Here, John follows a woman into a private space, a shower, while he is naked. He then refuses to leave when, presumably, she has made her discomfort known. He only leaves when others arrive, suggesting his presence was intimidating and unwanted. These circumstances make it highly likely a jury would infer that his intention was, at the very least, to cause alarm or distress. It is difficult to conceive of a non-alarming reason for this behaviour. Therefore, it seems probable that both elements of the mens rea for section 66 can be established.
Voyeurism under Section 67 of the Sexual Offences Act 2003
John may also be liable for voyeurism under section 67 of the SOA 2003. A person commits this offence if, for the purpose of obtaining sexual gratification, he observes another person doing a private act, and he knows that the other person does not consent to being observed for his sexual gratification.
A ‘private act’ is defined in section 68(1) as an act which a reasonable person would consider to be private because of its nature or the circumstances. Section 68(2)(d) explicitly includes a person using a lavatory or washing or bathing as engaging in a private act. The woman in the shower was clearly engaged in a private act. John was present and therefore ‘observing’ her.
The key element is the purpose of the observation. The prosecution must prove that John was observing the woman for the purpose of his own sexual gratification. This is a question of fact for the jury. Direct evidence of such a purpose is often unavailable. However, juries are entitled to draw inferences from the defendant's conduct. John’s actions of following a woman into a shower, while naked himself, and refusing to leave, strongly suggest a sexual motivation. In the absence of any other plausible explanation, a jury would likely be persuaded that his purpose was sexual gratification. Furthermore, it is clear that the woman did not consent to being observed, and John would have known this. His refusal to leave reinforces his knowledge of her lack of consent. Consequently, a charge of voyeurism under section 67 appears to be a strong possibility.
Sexual Assault under Section 3 of the Sexual Offences Act 2003
A charge of sexual assault under section 3 seems unlikely on the current facts. The actus reus of sexual assault requires intentional ‘touching’ of another person, where the touching is sexual and the complainant does not consent. The facts state John followed the woman and refused to leave, but there is no mention of any physical contact between John and the woman. Without touching, an essential element of the offence is missing, and a charge of sexual assault would fail.
Incident 2: The Child
On a separate occasion, John pulled down a six-year-old’s pants and slapped them on the bare bottom. This act gives rise to potential liability for sexual assault, or alternatively, battery.
Sexual Assault under Section 3 of the Sexual Offences Act 2003
The most serious potential offence is sexual assault under section 3. The elements are, as noted above, an intentional sexual touching of another person, without their consent.
The first element, intentional touching, is clearly satisfied. Pulling down trousers and slapping a bottom constitutes a direct application of force. The touching of clothing can amount to touching the person (R v H [2005] EWCA Crim 732). The slap is a direct touching. John’s actions were clearly intentional.
The central issue is whether the touching was ‘sexual’. Section 79 of the SOA 2003 defines this term. It states that touching 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 any circumstances or the purpose of any person in relation to it (or both) it is sexual.
The slap on the bottom is not an act which is always sexual by its nature under section 79(a). Therefore, the prosecution must rely on section 79(b). The jury must decide whether the touching was sexual, considering its nature and the circumstances or John’s purpose. The test is objective: what would a reasonable person think? (Herring, 2022). The circumstances here are highly significant. The victim is a six-year-old child. John has actively removed the child’s clothing to expose their buttocks before slapping them. This goes far beyond a disciplinary tap or a playful gesture. A reasonable person, looking at the act of pulling down a young child's trousers to slap their bare skin, would very likely consider it to be sexual in character. John's earlier conduct in the shower incident, if admitted as similar fact evidence, could also be used to help establish a sexual purpose, further strengthening the case under section 79(b).
The final actus reus element is the absence of consent. Section 71 of the SOA 2003 contains conclusive presumptions about consent in relation to children under 13. It states that if a defendant does a sexual act to a child under 13, the child is conclusively presumed not to have consented, and the defendant is conclusively presumed not to have believed the child consented. As the victim is six years old, consent is legally impossible.
The mens rea for sexual assault is that the touching was intentional (which it was) and that John did not reasonably believe the victim consented. Given the victim's age, section 71's conclusive presumption means John cannot have had a reasonable belief in consent. Therefore, the mens rea is also satisfied.
In summary, there is a very strong case for charging John with sexual assault under section 3 for this incident.
Battery
If, for any reason, a jury was not satisfied that the touching was sexual, John would still be liable for the lesser offence of battery, contrary to section 39 of the Criminal Justice Act 1988. Battery is the intentional or reckless application of unlawful force to another person. Pulling down the child’s pants and slapping them is a clear application of unlawful force. The act was intentional. Therefore, all the elements of battery are easily made out. This would serve as an alternative verdict for the jury if they acquitted him of sexual assault.
Conclusion
In conclusion, John's conduct gives rise to significant criminal liability. For the first incident in the shower, he is likely to be charged with exposure under section 66 of the SOA 2003 and/or voyeurism under section 67. The evidence for both appears strong, particularly the inferences that can be drawn from his behaviour. For the second incident involving the six-year-old child, the most appropriate charge is sexual assault under section 3 of the SOA 2003. The circumstances of the touching make it highly probable that a jury would find it to be 'sexual', and the victim's age makes a lack of consent legally certain. Should the sexual element not be proven, he would still be guilty of battery.
References
Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford University Press.
Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford University Press.
Cases
R v H [2005] EWCA Crim 732
Legislation
Criminal Justice Act 1988
Sexual Offences Act 2003
