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PERSPECTIVES ON SEX,
CRIME AND SOCIETY

Second Edition

CP
Cavendish
Publishing
Limited

London • Sydney
PERSPECTIVES ON SEX,
CRIME AND SOCIETY

Second Edition

David W Selfe, BA (Hons), MPhil

Deputy Director, School of Law
Liverpool John Moores University
Vincent Burke, LLB (Hons), MPhil
Lecturer in Law
Liverpool John Moores University

CP
Cavendish
Publishing
Limited

London • Sydney
Second edition first published in Great Britain 2001 by Cavendish Publishing
Limited, The Glass House, Wharton Street, London WC1X 9PX, United
Kingdom
Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080
Email: [email protected]
Website: www.cavendishpublishing.com

© Selfe, D and Burke, V 2001

First edition 1998
Second edition 2001

All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, scanning or otherwise, except under the
terms of the Copyright Designs and Patents Act 1988 or under the terms of a
licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,
London W1P 9HE, UK, without the permission in writing of the publisher.

British Library Cataloguing in Publication Data

Burke, Vincent
Perspectives on sex, crime and society – 2nd ed
1 Sex crimes – England 2 Sex crimes – Wales
3 Sex and law – England 4 Sex and law – Wales
I Title II Selfe, David
345.4'2'0253

ISBN 1 85941 600 4

Printed and bound in Great Britain

 PREFACE

It is three years since the first edition of this book was written. In that time,
there have been numerous statutory and case law developments. These have
covered issues of substantive law, as well as issues relating to sentencing and
post-sentence disposal of offenders. In particular, the second edition has
incorporated new material on the operation of the Sex Offenders Register and
Sex Offender Orders.
Perhaps of even more significance, the last three years has seen a wealth of
new cases involving the interpretation of recent statutory provisions and
common law principles. The major House of Lords decision in B v DPP on
strict liability and mistake of age is included. The Court of Appeal has been
particularly active. New cases include Tabassum on consent and fraud,
Thornton on sentencing, Bowden, Atkins and Goodland on indecent photographs
of children, and AB and CD on confidentiality and disclosure of information
relating to paedophiles.
The second edition has been amended also to take account of social and
political changes and inputs. There have been significant parliamentary
debates relating to the age of consent, as well as proposals for reform
contained, for example, in the Sexual Offences (Amendment) Bill 2000, and
these are incorporated in relevant chapters. Most noticeably, the text
incorporates the Government’s comprehensive review of sexual offences law.
In this respect, the major recent proposals contained in the Home Office
Review, Setting the Boundaries, 2000, are fully discussed.
A number of sections dealing with comparative law and the increasing
influence of decisions of the European Court have been enhanced. These
include the decision of the Supreme Court of Canada in Cuerrier and the
European Court ruling in ADT v UK.
We have stated the law as it stands at 15 November 2000. At the time of
writing, the Sexual Offences (Amendment) Bill 2000 has not yet been enacted.
However, following its third defeat (on 13 November) in the House of Lords,
the indications are that the Government will use the Parliament Act to ensure
the enactment of the Bill. Consequently, references in the text (especially in
Chapters 2 and 5) to the 2000 Bill should be read as the Sexual Offences
(Amendment) Act. Similarly, those parts of the text which relate to indecency
with children and indecent photographs of children must be read in the light
of ss 39 and 41 of the Criminal Justice and Court Services Act 2000, which
increase the maximum sentences available for the relevant offences.

v
 Perspectives on Sex, Crime and Society

We would like to take this opportunity to record our most heartfelt thanks
to our wives, Elaine and Betty, for their encouragement, support and
considerable patience extended to us during the preparation of this edition.
We wish to say thank you also for the invaluable help provided by Nick
Spalton, from the Aldham Robarts Learning Resource Centre.
Finally, our thanks go to Cavendish for all of their support, help and
encouragement.
David Selfe
Vincent Burke
Liverpool
November 2000

vi
 CONTENTS

Preface v
Table of Cases xv
Table of Statutes xxiii

1 HOMOSEXUALITY: THE SOCIO-LEGAL CONTEXT 1

1 INTRODUCTION 1
2 HISTORICAL AND CULTURAL PERSPECTIVES 1
2.1 Attitudes towards homosexuality 2
2.2 ‘Homophobia’ and perceptions of homosexuality 3
2.2.1 The concept of ‘homophobia’ 3
2.2.2 Role creation 5
2.2.3 The ‘dangers’ of homosexuality 5
2.2.4 The medical issues 8
3 HISTORICAL ATTITUDES TOWARDS HOMOSEXUALITY:
PRE-20TH CENTURY 9
3.1 The origins of legal control 10
3.1.1 Enforcement 10
3.2 Legislative changes 11
4 HOMOSEXUALITY IN THE 20TH CENTURY: THEORIES,
ATTITUDES AND IDEOLOGIES 12
4.1 Permissiveness 12
4.1.1 What is ‘permissiveness’? 13
4.1.2 Defining ‘permissiveness’ 13
4.1.3 Critiques of permissiveness 14
4.2 The Wolfenden Committee Report on Homosexuality
and Prostitution 1957 16
4.2.1 Background to Wolfenden 16
4.2.2 Aims of Wolfenden 17
4.2.3 Critiques of the ‘Wolfenden strategy’ 19
4.3 The current debates: 1994–2000 22
4.3.1 The Criminal Justice and Public Order Act 1994 22
4.3.2 The Crime and Disorder Bill 1997–98 24
4.3.3 The Sexual Offences (Amendment) Bill 1999–2000 26

2 HOMOSEXUALITY: CRIMINALISATION AND CONTROL 29

1 INTRODUCTION 29
2 BUGGERY 29
2.1 Buggery pre-1994 30
2.1.1 ‘Categories’ of buggery 30
2.1.2 Buggery with females 31
2.2 Buggery post-1994: the Criminal Justice and
Public Order Act 1994 and the Sexual Offences
(Amendment) Bill 1999–2000 33

vii
 Perspectives on Sex, Crime and Society

2.2.1 Actus reus 33

2.2.2 Parties 34
2.2.3 Mens rea 40
2.3 Reform 42
2.3.1 Sexual Offences (Amendment) Bill 2000 43
2.3.2 Home Office Consultation Paper: Setting the
Boundaries, July 2000 44
2.4 Sentencing buggery 45
2.4.1 Aggravating factors 46
2.4.2 Mitigating factors 47
3 GROSS INDECENCY BETWEEN MEN 48
3.1 Parties 49
3.2 Actus reus 49
3.2.1 Gross indecency 49
3.2.2 With another man 50
3.3 Mens rea 51
3.4 Sentencing gross indecency 51
3.5 Alternative offences to gross indecency 51
3.6 Reform 52
4 SOLICITATION BY MEN FOR IMMORAL PURPOSES 53
4.1 Actus reus 53
4.1.1 Persistently 53
4.1.2 Solicit 55
4.1.3 Importune 55
4.1.4 Immoral purposes 56
4.2 Mens rea 59
4.3 Reform 59

3 RAPE 61
1 INTRODUCTION 61
2 AN OVERVIEW OF SOCIAL AND THEORETICAL ISSUES 61
2.1 Classifying rape 61
2.2 Rape and patriarchy: the feminist perspective 62
2.2.1 Rape and the family 62
2.2.2 Control 62
2.3 Rape: attitudes and responses 63
2.3.1 The incidence of rape 63
2.3.2 The ‘seriousness’ of rape 64
2.3.3 The police 65
2.3.4 Statistics 65
3 RAPE: THE OFFENCE 66
3.1 The legislative background 66
3.1.1 DPP v Morgan [1975] 2 All ER 347 66

viii
 Contents

3.1.2 Report of the Advisory Group on the Law of Rape

[the Heilbron Committee], Cmnd 6352, 1975 67
3.2 The current law 68
3.2.1 Parties 68
3.3 Actus reus 69
3.3.1 Sexual intercourse 70
3.3.2 Consent 74
3.4 Mens rea 87
3.4.1 Definition 87
3.4.2 Reckless rape 87
4 SENTENCING RAPE 91
4.1 Sentencing policy 91
4.1.1 Social disquiet 92
4.1.2 The guidelines 93
4.1.3 Post-Billam 95
4.2 Male rape and anal rape of females 104
4.2.1 Sentencing non-consensual buggery 104
4.2.2 Sentencing anal rape: post-1994 107
5 REFORM OF RAPE LAW 110
5.1 Interpretation 110
5.2 Actus reus 110
5.3 Mens rea 111
5.4 Consent 112

4 OFFENCES RELATED TO SEXUAL INTERCOURSE 115

1 INTRODUCTION 115
2 PROCURING SEXUAL INTERCOURSE WITH A WOMAN 115
2.1 Procuring a woman by threats or intimidation 115
2.1.1 Parties 115
2.1.2 Procure 116
2.1.3 Threats or intimidation 117
2.1.4 Sexual intercourse 118
2.1.5 Mens rea 119
2.2 Procuring a woman by false pretences or representations 119
2.2.1 False pretences or false representations 119
2.2.2 Mens rea 120
2.3 Administering drugs, etc, to obtain or facilitate sexual
intercourse 120
2.3.1 Parties 120
2.3.2 Actus reus 121
2.3.3 Mens rea 123
2.4 Reform 123

ix
 Perspectives on Sex, Crime and Society

3 SEXUAL OFFENCES AGAINST THE MENTALLY

HANDICAPPED 125
3.1 The common elements 126
3.1.1 Defective 126
3.1.2 The common defence 127
3.2 Unlawful sexual intercourse with a female defective 128
3.3 Procuring a female defective to have unlawful sexual
intercourse 129
3.4 Indecent assault on a defective 129
3.4.1 Defectives and consent 130
3.4.2 Sentencing indecent assaults on defectives 130
3.5 Unlawful sexual intercourse, etc, with a mental patient 131
3.5.1 Mental disorder 132
3.5.2 The exception 132
3.5.3 Sentencing: s 128 133
3.6 Reform 133

5 SEXUAL OFFENCES AGAINST THE YOUNG 135

1 INTRODUCTION 135
2 UNLAWFUL SEXUAL INTERCOURSE WITH GIRLS 137
2.1 Unlawful sexual intercourse with a girl under the age of 13 137
2.1.1 Parties 138
2.1.2 Consent 138
2.1.3 Mens rea 138
2.1.4 Sentencing: s 5 139
2.2 Unlawful sexual intercourse with a girl under the age of 16 141
2.2.1 Parties 141
2.2.2 Actus reus 142
2.2.3 Defences to s 6(1) 143
2.2.4 Mens rea 147
2.2.5 Sentencing: s 6 147
3 GROSS INDECENCY WITH OR TOWARDS A CHILD
UNDER 14 150
3.1 Parties 151
3.2 Actus reus 151
3.2.1 Act of gross indecency 151
3.2.2 With or towards 152
3.2.3 Incites 152
3.3 Mens rea 153
3.4 Sentencing: s 1(1) 156
4 INDECENT PHOTOGRAPHS OF CHILDREN 157
4.1 Taking, etc, an indecent photograph of a child 158
4.1.1 Parties 159
4.1.2 Actus reus 159

x
 Contents

4.1.3 Mens rea 166

4.1.4 Sentencing s 1(1) offences 167
4.2 Possession of an indecent photograph of a child 168
4.2.1 ‘Physical’ possession 168
4.2.2 ‘Mental’ possession 169
4.2.3 Defences to s 160 ‘possession’ 170
5 CONTROLLING SEX OFFENDERS: THE SEX OFFENDERS ACT
1997 AND THE CRIME AND DISORDER ACT 1998 171
5.1 Notification requirements for sex offenders 171
5.2 Sexual offences committed outside the UK 175
5.3 Sex Offender Orders 175
5.4 Disclosure 177
6 REFORM 178
6.1 Sexual Offences (Amendment) Bill 2000 179
6.2 Setting the Boundaries 181

6 INDECENT ASSAULT 183

1 INTRODUCTION 183
2 ACTUS REUS 183
2.1 Assault or battery 183
2.1.1 Battery 184
2.1.2 Assault 184
2.2 Indecency 185
2.2.1 Inherent indecency, or acts rendered indecent by
accompanying circumstances 186
2.2.2 Assaults objectively incapable of indecency 189
2.2.3 Ambiguous circumstances making assault capable
of indecency 189
2.3 Consent 191
2.3.1 Consent and victims under 16 191
2.3.2 Consent and hostility 192
2.3.3 Scope of consent: public policy 195
2.3.4 Scope of consent: vitiation by force, fear or fraud 199
3 MENS REA 200
3.1 Indecent intent 200
3.1.1 Proving indecent intent 200
3.2 Recklessness in indecent assault 202
3.2.1 Recklessness and consent 202
3.2.2 Recklessness and attempted indecent assault 202
4 SENTENCING INDECENT ASSAULT 203
4.1 The guidelines 204
4.1.1 Contrast with rape 204
4.1.2 Aggravating features 205

xi
 Perspectives on Sex, Crime and Society

4.1.3 Indecent assaults on consenting minors 207

4.1.4 ‘Minor’ assaults 208
4.2 Longer than normal sentences 210
5 REFORM 211

7 PROSTITUTION: SOCIAL AND THEORETICAL PERSPECTIVES 215

1 INTRODUCTION 215
1.1 The inevitability of prostitution 215
2 PROSTITUTION IN HISTORICAL CONTEXT 217
2.1 The move from matriarchy to patriarchy 217
2.2 Classical attitudes 217
2.3 Prostitution and Christianity 218
2.4 Medieval Europe 219
2.5 The 16th–17th centuries 219
2.5.1 The Reformation 219
2.5.2 Post-Reformation 220
2.5.3 The Restoration 221
2.6 The 18th century 221
2.6.1 The economic factor 222
2.6.2 The Societies for the Reform of Manners 222
2.7 The 19th century 223
2.7.1 Early 19th century 223
2.7.2 Mid to late 19th century 224
3 THE 20TH CENTURY 227
3.1 The 1950s 227
3.1.1 The Wolfenden strategy 228
3.1.2 The effect of Wolfenden 229
3.2 The 1960s to the present 229
4 THE THEORISATION OF PROSTITUTION 231
4.1 The functionalist perspective 231
4.1.1 Prostitution and sexuality 231
4.1.2 Functionalist explanations 232
4.1.3 Functionalism and control 232
4.2 The feminist perspective 233
4.2.1 Prostitution and sexuality 233
4.2.2 Feminist explanations 234
4.2.3 Feminism and control 235
4.3 The Social Interactionist (or constructionist) perspective 235
4.3.1 Relativity 235
4.3.2 Social control 236
4.3.3 Classification 237
4.4 The Liberal/Permissive perspective 238
4.5 The Puritan/Authoritarian perspective 239
4.6 The welfarist perspective 239
4.7 The rights perspective 241

xii
 Contents

8 PROSTITUTION: STREET OFFENCES AND OFFENCES

RELATED TO PROSTITUTION 243
1 INTRODUCTION 243
1.1 Background to the modern law 243
2 LOITERING OR SOLICITING BY A COMMON PROSTITUTE 245
2.1 Common prostitute 245
2.1.1 Parties 245
2.1.2 Prostitute 246
2.1.3 Common 247
2.2 Loiter or solicit 248
2.2.1 Loiter 248
2.2.2 Solicit 248
2.3 In a street or public place 250
2.3.1 Street 250
2.3.2 Public place 251
2.4 For the purpose of prostitution 252
3 SOLICITING BY MEN 253
3.1 Kerb-crawling 254
3.1.1 Parties 254
3.1.2 Solicits 254
3.1.3 For the purpose of prostitution 255
3.1.4 Motor vehicle 255
3.1.5 Street or public place 256
3.1.6 Persistently or likely to cause annoyance or nuisance 256
3.2 Persistent soliciting 257
3.2.1 Solicits 257
3.3 Relationship between ss 1 and 2 258
4 REFORM 258
4.1 Prostitute 258
4.2 Soliciting offences 259
5 LIVING ON THE EARNINGS OF PROSTITUTION 260
5.1 Man living on the earnings of prostitution 260
5.1.1 Burden of proof and trial judge’s direction 260
5.1.2 Parties 261
5.1.3 Mens rea: knowingly 262
5.1.4 Living on 262
5.1.5 Wholly or in part 263
5.1.6 Earnings of prostitution 263
5.1.7 Advertising services of prostitutes 268
5.2 Woman exercising control over a prostitute for purposes
of gain 269
5.2.1 Parties 269
5.2.2 For purposes of gain 269
5.2.3 Control, direction or influence 270

xiii
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