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Adam Johnson and the Mythology of Sexual Offences

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About The Author

Keir Baker (Consulting Editor)

Keir is a Trainee Solicitor currently sitting in the Finance department at a major US law firm. A law graduate from Selwyn College, Cambridge University, his main areas of interest are Employment, Discrimination and Competition law. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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Humans live through their myths and only endure their realities.

Robert Anton Winston

On the 23 April 2015, the Sunderland and England winger Adam Johnson faced charges on three counts of sexual activity with a child and one count of meeting a child following sexual grooming. It is alleged that Johnson, 27, committed the three counts of sexual activity on one night in January, while the two meetings that constitute the alleged ‘grooming’ took place between the 30th December 2014 and the 26th February 2015, all involving a 15-year-old victim. He has pleaded not guilty.

Johnson remains a popular figure not only among fans of his current club Sunderland, but continues to enjoy support from fans of his former clubs (including Manchester City and Middlesbrough), and the revelation of these charges was greeted with shock and disbelief. Many loyal fans sided with their hero on social media, which teamed with heated discussions on the validity of his charges. For example, some wrongly suggested, that Johnson was innocent because his alleged victim had consented to the sexual activity.

There appears therefore to be misconceptions regarding the law in this area, and myths that need to be busted. This article will identify and expel the common myths associated with s. 9 and s. 15 of the Sexual Offences Act 2003, which have once again arisen following Johnson’s charges.

The Legislation - The Sexual Offences Act 2003

The law of sexual offences is governed by the Sexual Offences Act 2003 (SOA 2003), with the two charges faced by Johnson covered by s. 9 and s. 15. It is in these offences that grey areas begin to surface, and are consequently surrounded by public misconceptions.

Section 9

(1) A person aged 18 or over (A) commits an offence if -

(a)he intentionally touches another person (B),

(b) the touching is sexual, and

(c) either -

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

Section 15

(1) A person aged 18 or over (A) commits an offence if -

(a) A has met or communicated with another person (B) on at least two occasions and subsequently -

(i) A intentionally meets B.
(ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
(iii) B travels with the intention of meeting A in any part of the world.

(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph a(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence.

(c) B is under 16, and

(d) A does not reasonably believe that B is 16 or over.

Myth 1: ‘Sexual touching’ must involve genitalia

Section 78 of the SOA 2003 defines the sexual element of sexual touching.

Section 78 - 'Sexual’

(1) Penetration, touching, or any other 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 purpose in relation to it (or both) it is sexual.

The circularity and ambiguity of this definition poses a problem as it breaks the first logical rule of definitions by using the very term it is defining. Indeed, if s. 78 is distilled to its central meaning, a touching is considered sexual merely if the reasonable person would say it is sexual. As a result, this definition leaves interpretation vulnerable to a heavy reliance on jury subjectivity, making it difficult to apply consistently without employing case law.

Rather straightforwardly, if the activity is by its nature inherently sexual (e.g. sexual intercourse, or masturbation), then the defendant may be convicted. But where ambiguity arises around the sexual nature of the activity, the law requires that the circumstances and purpose of the act be examined.

As the case law demonstrates, it is the circumstances and the purpose that determine whether the touching is sufficiently sexual for a conviction, rather than what the touching actually consisted of in physical terms.

Indeed, touching that would otherwise be lawful can become convictable offences if a defendant’s intentions are sufficiently unlawful. The pre-SOA 2003 decision of R v Court [1989] AC 28, offers a good example, a case where the defendant slapped a young girl on the bottom. It was initially assumed that the purpose of the act was disciplinary - legal at the time - but the defendant later confessed to having gained sexual gratification from it, and was consequently charged and convicted under s. 9. This fact pattern was mirrored in the case of R v Price [2003] All ER 331, which provides a more contemporary example. Here, the defendant’s actions were deemed to amount to sexual assault after he stroked a woman’s leg over her trousers and admitted to gaining sexual gratification from it.

Often though, a defendant is unlikely to admit his intentions, meaning that a method is required for discerning whether a defendant’s purpose was of a convictable nature. In his judgment in Court, Lord Ackner not only described how the defendant must act with a sexual motive, but suggested that whether a defendant’s motive is to obtain sexual gratification ‘may be inferred from the evidence as a whole.’

The case of R v Kumar [2006] EWCA Crim 1946 demonstrates such an inference in practice. It was held that a doctor who obtained sexual gratification from a necessary medical examination – which was conducted in a manner effective enough to provide an accurate diagnosis - could still be convicted if his purpose was to obtain sexual gratification. Here, the court followed Lord Ackner’s method, inferring from the doctor’s examination technique – which involved the defendant leaning his head on the victim’s shoulder and breathing deeply – that the examination had cloaked a more sinister motive.

This case also exemplifies the low threshold that concerns the law of sexual touching, which stems from the moral outrage and seriousness with which society views obtaining sexual gratification from someone without their permission.

The low threshold is further illustrated by the case of R v Abdullahi [2006] EWCA Crim 2060, in which the Court of Appeal held that the sexual gratification need not be taken immediately and could extend to a longer term plan to obtain further or greater sexual gratification in the form of the eventual working out of a particular sexual fantasy or activity involving the child.

Further, the precedent of R v Lister [2005] EWCA Crim 1903 confirms that passionate embracing and kissing with a person under the age of 16 can suffice for sexual activity. It is likely to suffice because kissing someone (particularly in certain scenarios) can be something from which people gain sexual gratification, and also function as a precursor to more serious sexual activity.

The low threshold does stop somewhere though; the precedent of the pre-SOA 2003 case R v George [1956] Crim LR 52 holds an act that is not inherently sexual cannot be made sexual by a person having a secret fetish. Here, the defendant removed a shoe from the victim’s foot because he derived sexual gratification from other people’s feet; it was held that this was not sexual because a person’s shoe could be removed for other reasons.

Section 79(8)(a) defines the touching element of 'sexual touching.'

Section 79 - ‘Touching’

(8) Touching includes touching -

(a) with any part of the body,

(b) with anything else,

(c) through anything,

and in particular includes touching amounting to penetration.

Again, surrounding this section of the statute is another low threshold – present for the reasons discussed above. This is demonstrated by the case of R v H [2005] 2 Cr. App. R. 9, the Court of Appeal held that the touching of an individual's clothing was sufficient to amount to 'touching through anything’, as required by s. 79(8)(a). Ultimately, in Johnson’s case, it still remains unclear as to what (if any) sexual activity Johnson undertook with his alleged victim.

Myth 2: If the victim tells the accused he or she is over 16, it is not the accused’s fault

In order to avoid conviction for either of these offences, a defendant can argue that he reasonably believed that his victim was over the age of 16. This is sometimes termed ‘the young man’s defence.’ If this can be substantiated, the defendant must then prove that they believed the victim consented to avoid prosecution.

Deciding whether a belief is reasonable - in a similar vein to determining whether an activity can be considered sexual - is determined taking into account all the circumstances of the case, including any steps a defendant took to ascertain whether the victim was over the age of 16.

The concept of reasonableness is open to the jury to decide, but it can be assumed that common sense will prevail. For example, if a victim had used a fake ID to get into a nightclub or other establishment into which only those of 18 years or old can go, it is likely that a jury would consider a defendant’s belief that his victim was of sufficient age reasonable. In contrast, a defendant basing their belief on height or any other aspect of his victim’s appearance is likely to be considered to have had an unreasonable belief.

A charge of sexual activity can only apply when the ‘young man’s defence’ is no longer applicable. This is also true of the charge of grooming – discussed further below. However, this charge also requires (inter alia) at least two meetings between the defendant and the victim and that at both meetings, the ‘young man’s defence’ does not apply.

The case of R v Shelton [2012] EWCA Crim 2865 demonstrates this. Here, the 14 year old victim first met (and had sexual intercourse with) the defendant at a New Year’s party. The jury, taking into account all the circumstances (including both the presence of alcohol and the lack of the victim’s parents), decided that – for this meeting and sexual activity - the defendant’s belief that the victim was over 16 was a reasonable one. This meant that this meeting could not apply for a s. 9 or s. 15 charge.

In fact, it was only the meetings and intercourse that occurred later in time that counted towards the defendant’s charges, for shortly after the party the victim sent the defendant a text message informing him of her true age.

Myth 3: It is not a sexual offence if the victim consents

There was even greater scrutiny of the charges faced by Johnson arose when the victim boasted on social media about her alleged relationship with the footballer. Many on social media trying to defend Johnson suggested that this showed that she was not coerced into the sexual activity or the meetings, and was - in the language of the everyday person - consenting to everything that happened.

So does consent exonerate?

No. Unequivocally.

In the eyes of the law, anyone under the age of 16 cannot consent to sexual activity. State paternalism and concerns regarding the vulnerability and susceptibility of persons under 16 to pressure into becoming sexual active have driven this seemingly arbitrary rule.

This is subject to certain caveats: the Crown Prosecution Service (CPS) suggests that it is unlikely charges will be pressed when the two persons involved are both over the age of 13. Pragmatism wins out here, for statistics show that pursuing charges in these instances would lead to rampant over-criminalisation, with the National Survey of Sexual Attitudes and Lifestyles suggesting half of all UK teenagers have their first sexual experience by the age of 14.

There are two main instances where this caveat does not apply, with the first being to those offences concerning sexual activity with persons under 13. The case of R v G [2008] UKHL 37 – where an unwitting 15 year old defendant was convicted of having sexual intercourse with a 12 year old, despite the victim lying about her age - demonstrates the strict liability regime surrounding these crimes. No matter how reasonable a belief in age, no matter the existence of any other circumstances, a defendant who engages in sexual activity with anyone under 13 is guilty as charged.

The caveat also does not apply when the defendant is over 16. The concerns of the vulnerability and susceptibility of persons under 16 are naturally heightened when it appears an adult – assumed capable of wielding greater influence over a young person – is involved. Therefore, an under 16’s consent is vitiated – deemed ineffective in the eyes of the law – when an adult is involved.

Myth 4: Grooming involves just one meeting that includes sex

Firstly, the offence – as described in s. 15(1)(a) - requires two meetings or communications between the defendant and the victim. Further, there is no requirement for the communications prior to the meeting to be sexual: but there must be at least two communications between the defendant and the victim to establish the offence.

The meetings must be intentional too. It does not count if the defendant has merely taken advantage of a coincidental meeting, a chance encounter. As the SOA 2003 mentions in s. 15(1)(a)(i-iii), it also does not matter who travels to meet the other.

Additionally, in R v CB [2010] EWCA Crim 3009, it was held that a meeting need only be arranged and not necessarily followed through. If a defendant does not attend the second meeting, it can still count towards the offence, if it was patently obvious that the meeting would have been sexual if it had transpired. In that case, the potential for the sexual nature of the victim had been demonstrated by the sexual nature of the prior communication between the defendant and the victim.

Secondly, s. 15(1)(b) requires that these meetings facilitate ‘the commission by A of a relevant offence.’ For this, the case of R v G [2010] EWCA Crim 1693 proves instructive: here, it held that the meetings must facilitate the development of a relationship from which the defendant intended to 'launch sexual offending.'

With so few facts available about the case against Johnson, it is impossible to speculate whether this analysis is relevant at all. However, it still seems important to bust the myth that sexual grooming is confined to paedophiles meeting children in parks. Indeed, a meeting can also take the form of contact online in a chatroom - as in R v S [2008] EWCA Crim 600 - or to the sending of nude pictures- as in R v Barnett [2007] EWCA Crim 1625.

Conclusion

Johnson’s case is still ongoing and the fact pattern unclear. As a result, there is no definitive analysis that can be done concerning the specific alleged offences. Nevertheless, this case does demonstrate a clear need for the bettering of public understanding concerning the SOA 2003 and its supplementary case law. Indeed, as held in the case of R v Lee [2000], ignorance of the law is not a valid defence: a lack of knowledge here could lead to serious repercussions for both the alleged victim and alleged offender.

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Tagged: Criminal Law

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