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The Jersey Law Review - October 2004
THE SEXUAL OFFENCES ACT, 2003 – IS JERSEY FALLING BEHIND?
Cyril Whelan
Introduction
1 Jersey has never had an equivalent of the Sexual Offences Act 1956, that is to say an overarching proscriptive statute which attempts to cover the broader generality of sexual offending. There has nevertheless been a recognisable correspondence between the legal approach to sexual offences as between the Jersey and English jurisdictions. This is because the Sexual Offences Act 1956 was a consolidation statute drawing from common law and a number of Victorian statutes, and the equivalent proscriptions in Jersey derive from customary law attended by a group of comparatively early statutes. Crucial distinctions between the relevant English common law and Jersey customary law are not greatly apparent and the relevant Jersey statutes mirror the English equivalents quite closely in structure.
2 The advent of the Sexual Offences Act 2003 terminates that correspondence at many points. The condition of the English law on sexual offending before the 2003 Act was described thus in Setting the Boundaries (2000), the pre-white paper document published by the Home Office Review Group -
“It is a patchwork quilt of provisions ancient and modern that works because people make it do, not because there is a coherence and structure.”
3 The White Paper itself said of the then current law that -
“……..it is widely considered to be inadequate and out of date” as well as “archaic, incoherent and discriminatory.”
4 It is against that background that the 2003 Act attempts the clarification, revision and amendment of the law relating to sexual offences in England. So far as possible the offences are made gender-neutral. An express intention behind the Act is to improve conviction rates by providing “a clear legal framework for juries as they decide on the facts in each case.” In the absence of corresponding change is the Jersey law on sexual offending being left unacceptably “inadequate and out of date”?
Primary sexual offences
5 Only the broadest of theses is possible on an occasion of this sort. The broad thesis is that so far as concerns what it is convenient to call the primary sexual offences, the labelling of conduct may not be of ultimate significance in Jersey but genuinely important revisions to mental elements, including questions of consent, introduced by the 2003 Act merit early scrutiny and consideration for adoption into Jersey law.
6 The primary offences are at ss.1- 4 and ss.5- 8 of the Act. The offences are rape (s.1), assault by penetration (s.2), sexual assault (s.3) and causing a person to engage in sexual activity without consent (s.4). Ss. 5- 8 create the same four offences against child victims under thirteen years of age. The gravamen of each offence is of course the fact that it involves non-consensual sexual activity. Rape is redefined to include oral and anal penetration as well as vaginal penetration. “Vagina” is defined to include vulva and references to parts of the body throughout the Act include references to those which have been surgically constructed. The crime of rape, therefore, now applies to transsexuals.
7 In Jersey both rape and indecent assault are punishable at common law so that the maximum penalty in both cases is at large. The maximum penalty of life imprisonment for sodomy is actually prescribed by statute, namely the Loi (1938) Modifiant le Droit Criminel (Sodomie et Bestialité). Whether a piece of conduct, say non- consensual oral penetration, is called rape or indecent assault may not ultimately be consequential. Once the conduct is proved the Court is at perfect liberty to match the severity of the sentence to the gravity of the conduct in all of the circumstances.
8 What is greatly consequential is the full definition of the new offence of rape in the 2003 Act -
“a person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration and
(c) A does not reasonably believe that B consents.”
9 The new definition therefore requires the prosecution to prove three things – intentional penetration, absence of consent and absence of reasonable belief in consent. Provisions in this form about consent are absent from Jersey law and merit particular consideration as later discussed.
10 Turning to the new offence of assault by penetration, this offence like all others in the Act except rape, may be committed by a man or woman as principal. This offence is committed by the intentional, non- consensual penetration of vagina or anus with a body part or anything else. It does not, as is the case with rape, extend to oral penetration.
11 There is a clear overlap between rape and assault by penetration, as any penetration with the penis would also amount to an assault by penetration. Where it is clear that the penis is the object with which somebody has been penetrated, a person will always be charged with rape. The two sections were drafted as they were because there may be circumstances where it is not clear with what the victim was penetrated. The example given by the promoters of the Act is that if somebody is blindfolded, for example, there may be a reasonable assumption or a view about what happened, but it will not be completely clear. The distinction is deliberate and important and allows for that eventuality. The position about consent is that described earlier in connection with rape and will be further discussed later.
12 The 2003 Act creates the new offence of sexual assault. Under the Sexual Offences Act 1956 indecent assault had to cover a wide range of activities, as it does under the customary law of Jersey. The effect of the 2003 Act is among other things to reclassify forced oral sex as rape and to reclassify penetration of the vagina or anus other than by the penis as assault by penetration. Then follows the new offence of sexual assault, which has four elements: (i) the defendant (A) intentionally touches another person (B) (according to the Act “touching includes touching with any part of the body, and with anything else, or through anything”); (ii) the touching must be sexual, as defined; (iii) “B does not consent to the touching”; and (iv) “A does not reasonably believe that B consents.” Once more it is the consent provisions which mainly attract the Jersey eye and these are discussed later.
13 The fourth of the primary sexual offences newly created is that of causing a person to engage in sexual activity without consent. Existing legislation did not expressly provide for the prosecution of someone who forces another person to perform sexual or indecent acts. The new offence is designed to criminalise such conduct specifically. Those promoting the Act gave as examples the forced masturbation of the compeller, and cases where the compeller forces the victim to masturbate in front of him or to perform acts with third parties or with animals. The provision was also intended to deal with women who compel men to penetrate them. The proscribing of the instanced conduct appears to be useful in filling a significant gap. It would merit some examination in Jersey where the customary law offence of procuring an act of gross indecency is ultimately of untested and uncertain ambit. Once again the consent issues merit particular attention. What follows is directed at those issues as they apply to each of the four newly created primary sexual offences.
14 Questions attaching to consent, belief in consent and related problems of proof had become increasingly difficult in the English case law. Jersey does not have an established jurisprudence of its own on these refined questions and quite properly looks to English law for informed analysis about them. The introduction of statutory changes in England represents a progression which Jersey cannot immediately follow. Rather, Jersey is likely still to grapple with the existing difficulties of the common law.
15 On the question of consent, therefore, the Jersey approach is likely to remain that which is given in R v Olugboja by virtue of which consent remains undefined and the jury is simply directed to consider the fine difference between consent (including “reluctant acquiescence”) on one hand and mere submission on the other. The 2003 Act abandons that approach and introduces a statutory definition of consent thus: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” This general definition is buttressed by certain statutory presumptions some of which are conclusive and some of which are rebuttable. The conclusive presumptions are those set out at s.76(2). Once it is proved that the accused did the relevant act and that either of the specified circumstances existed then he will be unable to claim consent or belief in consent. Those circumstances are (a) that the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act and (b) that the accused intentionally impersonated a person known personally to the complainant.
16 The rebuttable presumptions are at s.75 and if the stipulated circumstances are present, it will be presumed both that consent and belief in consent were lacking. The defence will then bear the evidential burden of producing sufficient evidence to raise the issue of consent or reasonable belief in consent. If this evidential burden is discharged, the prosecution will have to establish the absence of consent or reasonable belief in consent beyond reasonable doubt. Broadly expressed the circumstances in question are the use or threat of violence against the complainant or another person, the unlawful detention of the complainant, the fact that the complainant was asleep or otherwise unconscious at the time of the relevant act, the complainant’s inability to communicate consent or otherwise because of physical disability, or the administration of a stupefying substance.
17 Similarly, on the question of absence of reasonable belief in consent, Jersey law is likely to continue to be informed by the decision in DPP v Morganso that a mistaken belief in consent, no matter how unreasonable, will provide a defence if the jury finds that belief was in fact held. The 2003 Act, however, has radically changed the position. Under the Act the need now is to prove that the accused “does not reasonably believe” that the victim consents. The question of whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the accused has taken to ascertain whether the victim consents. This departure from the subjectivity of Morgan means that the question whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the complainant consents. The burden under the Act is now clearly upon any person to take care to ensure that the other person is consenting. There is now a clear obligation on someone who is about to have sexual intercourse or to engage in other sexual activity with another person not to act negligently in terms of whether consent is present or not. In determining whether the defendant’s belief in consent was reasonable it will be vital to consider the steps that he has taken to ascertain whether the other party consents. This is at a long and rationally welcome remove from the defence of “unreasonable belief”.
Child sex offences
18 Reliance upon English principles has led Jersey law into the same thicket of difficulties on questions of age, belief in age and consent as existed in England prior to the 2003 Act. The consent of children under a certain age was nullified for the purposes of indecent assault-for the same principle in Jersey see Makarios- but following R v K, HL an accused was entitled to be acquitted of such a charge under English law if it related to a complainant below the age of 16 and the accused may have held an honest belief that the complainant was 16 years of age or older. Such belief did not have to be reasonable. The decision in Makarios is likely now to be read as subject to the same constraint. The offences of under age sex proceeded on the basis that a child’s consent, though real, was irrelevant – whereas the offence of rape worked on the theoretical basis that the consent of a child, however young, could be both real and legally effective.
19 The 2003 Act sweeps away the existing law on sexual acts with minors. A particular consequence is that the offence of sexual intercourse with a girl under thirteen, contrary to s.5 of the Sexual Offences Act 1956, is abolished. The offence of unlawful sexual intercourse with a girl under sixteen, and the so called “young man’s defence” that applied to it are also abolished. Building on the old offence of unlawful sexual intercourse with a girl under thirteen the 2003 Act (ss.5 – 8) sets out 4 new offences relating to sexual acts with children under thirteen years of age - namely the primary offences already discussed in relation to adults. There is the plainest intention to create strict liability in relation to these offences. The philosophy underlying the provisions is that the age at which consent cannot be recognised in law has to be below one in which it can safely be said that there is neither mutual agreement (because one or both parties was too young to possess the necessary knowledge, understanding and maturity to know what they were agreeing to) nor legal consent, where children should be protected from all sexual activity. The result is the new offence of raping a child under thirteen and for such an offence of rape it is unnecessary for the prosecution to prove the absence of consent. The new offence applies to any defendant regardless of age and as such attracted some criticism for bringing the full weight of the criminal law in cases where young people who are closer in age are experimenting.
20 It is worth observing that although commentaries on the 2003 Act have observed that the issue of consent is immaterial both in fact and in law, as is belief as to the age of the victim even if based upon reasonable grounds, other cogent views do exist as to how the Courts will eventually interpret the statutory provisions. However the point for present purposes is that there is an intention to create strict liability in these areas. No counterpart intention has yet been founded in Jersey so that the pre-2003 Act difficulties remain wholly in place in these areas.
21 The Act amends the law with respect to the defence of mistaken belief in the age of the child. In R v Kaye, the House of Lords had altered the law by reading into statutory provisions a requirement for the prosecution to prove the absence of an honest although not necessarily reasonable belief that the child was sixteen or over. The Act introduces a test of reasonableness. When the child is aged between thirteen and sixteen it will now be for the prosecution to prove that the defendant did not have a mistaken belief in the child’s age, or if he did, that it was not a reasonable belief. (Where the victim is under thirteen the offence is thus far to be regarded as one of strict liability so that the defendant’s belief in the age of the complainant will not be relevant.)
22 The focus of the provisions so far mentioned, regarding children, has been on children under thirteen years old. The 2003 Act introduces a further range of offences which cover offences against children up to that age, but which also extend to protect children up to sixteen years of age. Sections 9 – 12 deal with sexual activity with a child. These offences can be committed by a person aged over eighteen against a person who is either under sixteen (and the defendant does not reasonably believe that the person is sixteen or over) or with a person under thirteen. The behaviour prohibited is: intentional sexual touching; causing or inciting a child to engage in sexual activities; engaging in sexual activity in the presence of a child; and causing a child to watch a sexual act. These provisions proscribe wider conduct than that which would be caught in Jersey by the indecent assault or gross indecency offences. Examples of the newly criminalised conduct would be requiring children to perform sexual acts on each other, causing a child to strip for sexual gratification and causing a child to watch a pornographic film. The best available solution in Jersey in like circumstances would be a potentially laboured attempt to bring the conduct within the proscriptions of the Children (Jersey) Law, 1969.
23 It is clear therefore that a range of reprehensible conduct is specifically criminalised by the Act for which there is no true counterpart in Jersey law, be it by enactment or recognisable customary law proscription. There is little doubt that the introduction of counterparts would bear consideration in Jersey.
24 Moreover with the new child offences the issues of consent and belief about age appear to be plainly settled. Consent is irrelevant to a finding of guilt and on the question of age in any case in which the complainant is between thirteen and fifteen years old it will be for the prosecution to prove that the defendant did not believe the complainant was over sixteen. The defendant’s belief must be reasonable. The defendant will have an evidential burden to establish that he reasonably believed that the complainant was over sixteen years old. If he discharges that burden the prosecution will ultimately have to prove that he did not have such a belief. When the child is under thirteen no issue arises as to the defendant’s belief in the child’s age.
The Act more generally
25 The 2003 Act contains a range of new offences the introduction of which into Jersey would have to be considered against the criteria of genuine need and the adequacy of the existing law. On an occasion of this sort one can do no more than to mention some of them and offer summary observations where appropriate.
· Arranging or facilitating a child sex offence – it is an offence for a person intentionally to arrange or facilitate something which, if done, will involve the commission of any of the child sex offences created by the Act. The offence of facilitating is to be very widely interpreted to include preparatory acts which would fall short of a criminal attempt. The child sex offence can be intended to take place in any part of the world. One example would occur when a person approaches an agency requesting the agency to procure a child for sex. The offence is committed whether the child is procured for the person who approaches the agency or for anyone else and whether or not the sexual activity takes place - quaere whether there is any known level of conduct in this jurisdiction which yet requires such a provision.
· Meeting a child following sexual grooming – pre-existing legislation meant that a person luring a child to a meeting for a sexual purpose could rarely be charged, as no offence had actually occurred. The offence is intended to cover situations where an adult establishes contact with a child, for example on the internet, with the intention of gaining a child’s trust and confidence so that he can arrange to meet the child with an intention of committing a sexual offence against the child. The increasing incidence of this offence is well enough known in the larger jurisdictions but again quaere whether there is yet a demonstrable need for such a statutory provision in Jersey.
· Abuse of position of trust – it is often said that the risks to children from sexual abuse are now better understood than ever before and in recent years a number of measures have been put in place to protect children from abuse. The new provisions prohibit sexual activity between those aged eighteen and over and children under eighteen whom they are looking after in educational establishments and in various residential settings such as prisons and care homes. It is particularly noticeable that any child under the age of eighteen is protected by the abuse of a position of trust provision. The Act has been deliberately drafted in these terms to offer extended protection to children aged sixteen and seventeen in particular, as younger children will already be protected by the corresponding offences relating to child sex offences. The provisions apply regardless of whether the parties acted consensually. In Jersey it is well established that abuse of trust is an aggravating feature which will usually increase the sentence which would otherwise have been imposed for a sexual offence. Again it is to be questioned whether circumstances in the jurisdiction require specific trust relationships not only to be isolated for attention but to be attended by an increase in the usual age of consent.
· Familial sexual offences – it is recognised that the balance of power within the family and the close and trusting relationships that exist can make children particularly vulnerable to abuse within its environment. As a result the 2003 Act creates two new offences relating to familial sexual activity to replace the existing gender specific offences of incest and incest by a woman. The first of these new offences (s.25) protects children in a family relationship up to the age of eighteen from any form of intentional touching that would be considered sexual or indecent. It would cover sexual activity between family members of the same sex; oral sex or sexual acts falling short of penetration, thereby remedying a gap in the former law of incest. The second new offence largely mirrors that of s.10; causing or inciting a child to engage in sexual activity. The key element of the offence will be the incitement, so that the offence will be complete regardless of whether such act actually takes place. Again, given the range of available sexual offences in Jersey and the fact that the principal offences derive from common law so that the penalties are at large (and repeating the fact that abuse of trust is conventionally taken to increase sentence) the need for provisions of this sort in Jersey would, it seems, require very specific argument.
· Offences against persons with a mental disorder – previous legislation prohibited intercourse with a “defective” and prevented male staff employed in mental hospitals from having intercourse with patients of either sex. The legislation was seen as out of date and inadequate providing in most cases for low penalties upon conviction and an insufficient range of protection. Part of the difficulty was the need to prove that a person was “defective”. As the law was confined to protecting persons with a severe mental impairment it did not protect other vulnerable people who have some degree of ability or capacity to consent to sexual relationships but who could be cajoled or targeted by others. Accordingly, the 2003 Act creates a series of offences designed to protect mentally vulnerable people. All of the offences in these sections are concerned with the situation in which a person involves another person in sexual activity where that other person has a mental disorder and because of that disorder does not have the capacity to consent to the sexual activity. The definition of mental disorder is the same as that given in the Mental Health Act 1983. In Jersey the difficulties mentioned above subsist in the form of article 4 of the Loi (1895) modifiant le droit criminel which criminalises intercourse with “une fille ou femme idiote ou alienée d’esprit”.
· Child pornography – s.45 amends the Protection of Children Act 1976 and the Criminal Justice Act 1988 which govern the law relating to indecent photographs of children. The section raises the age of the child from under sixteen to under eighteen (unless the parties are married or at the material time living together as partners in an enduring family relationship). The Jersey equivalent is found in the Protection of Children (Jersey) Law, 1994 which applies to children under sixteen years of age. The policy of raising the protected age by two years gives rise to a debate of principle which might yet take place in Jersey.
· Prostitution, child pornography and trafficking – the Act criminalises the commercial sexual exploitation of children under eighteen for prostitution or the making of pornography and creates a range of gender neutral offences punishing those who exploit others by receiving money from prostitutes of either sex, those who manage or control the activities of prostitutes of either sex for money or reward and those who recruit men, women or children into prostitution whether or not for gain. In Jersey there are the procurement offences found in the Loi (1895) Modifiant le Droit Criminel and the offences of using a house for the purpose of prostitution, living on immoral earnings, soliciting for purposes of prostitution or controlling prostitutes with a view to gain, which latter offences are found in the Loi (1915) Modifiant le Droit Criminel. The offences pertain only to women as victims and the specific area of child prostitution is not dealt with and nor is trafficking for sexual exploitation domestically or internationally. The targeted conduct has not been an apparent feature in Jersey and those statutory offences which do exist in this area have been very little used over the last half century or so.
· Sections 61 – 63 of the 2003 Act provide offences which are preparatory to committing sexual offences. These are administering a stupefying substance with intent to engage in sexual activity; committing an offence with intent to commit a sexual offence and trespassing with intent to commit a sexual offence. The offence of administering a stupefying substance with intent is found in Jersey law at article 1 of the Loi (1895) Modifiant le Droit Criminel where the proscribed objective is described as “de mettre quelqu’un á même d’avoir rapport charnelle illicite avec elle”. The provision relates only to a male offender and a female victim and carries a maximum two year penalty, contrasting with the ten year penalty for the equivalent offence created by the 2003 Act.
26 The 2003 Act also makes amendments to the Sex Offenders Act, 1997 which deals with the registration of sex offenders. As yet Jersey does not have a sex offenders’ register or the attendant range of statutory measures which attempt to offer measures of protection to the community. The need for such statutory measures is patent and is already being addressed in draft legislation.
Observations
27 The 2003 Act is no panacea and a sensible case could not be made for its wholesale equivalent adoption into the law of Jersey. Indeed there is a body of respectable opinion which regards entire aspects of the Act as deeply unsatisfactory, characterising it as a creature of the Home Office misshapen through lack of adequate consultation. Criticism attaches to the fact that the new offences are too many and suffer from needless, if not confusing, overlap; complexity, obscurity and “legislative overkill” are all criticisms which have been levelled at the Act.
28 It is noticeable, certainly, that the Act is interventionist to the point of heavy-handedness in parts. The age of consent is tinkered with in places and some surprising results are produced. It has been pointed out that mouth to mouth kissing or other minor sexual exploration between consenting fifteen year olds has become a criminal offence attracting a maximum sentence of five years’ imprisonment. The same is true of the like consensual conduct as between (say) a young supply teacher and a seventeen and a half year old A level student; serious kissing between first cousins both aged seventeen is punishable with five years’ imprisonment (fourteen if this leads to anything more serious) if at any stage of their lives they have lived in the same household. The civil law, of course, permits such persons to marry each other! No doubt it can be said that these and other consequences of the Act will be ameliorated by prosecutorial policy decisions, but that of course does not alter the character of the statute.
29 For all of that, the 2003 Act has important virtues, at least in its intentions. As has been seen, in some cases it proscribes some conduct which on any view deserved criminalising but which had thus far avoided proscription. In other cases, offences are redrawn to better effect. In that regard the provisions about consent, belief in consent and belief about age are of the first importance. They may be less than perfect and indeed less than perfectly clear – much will depend on developing interpretation through the case law. The relevant provisions do, though, offer greater hope of sense and certainty than had hitherto been available.
30 In support of that view it might be instructive to postulate a single set of facts and to consider them according to Jersey law and then according to the 2003 Act.
31 Suppose then that a fifteen year old girl has been drinking for hours at a friend’s party at a local hotel. Stupefied with drink she feels dizzy and unwell. An adult male employee who is a stranger to her offers her the use of a bedroom to lie down for ten minutes so that she might feel better. She walks willingly to the room and lays fully clothed on the bed. The male has accompanied her to the room. He switches off the light and lies on the bed with her. He removes part of her clothing and proceeds to full intercourse. There has been no conversation between them. She is a person of limited sexual experience. She freezes and does not say or do anything for fear of the male becoming violent. He has not used or threatened violence. She did not want this to happen but, debilitated by drink and fear, and due to inexperience, she did not know how to make it stop. She is not, even when sober, a person of particular mental accomplishment. The male completes the act and leaves the room. She leaves the room moments later in a condition of evident distress and says immediately that she has been raped.
32 In Jersey the metaphysical arm- wrestle between reluctant acquiescence and mere submission takes place to determine whether consent was present or not (Olugboja). Supposing a jury finding of no consent the accused can fall back to an assertion of mistaken belief in consent. It does not even have to be a reasonable belief (Morgan), but it happens that on the present facts the accused has much material to work with. His conduct has been predatory and exploitative but he is unlikely to be convicted of rape.
33 For its part the prosecution might elect for the greater certainty of a charge of indecent assault (with the penetration itself being the assault) on the basis that consent would be irrelevant to conviction given that the girl was under sixteen years of age and in law unable to give consent. The prosecution would rely upon Makarios for that proposition but would now have to recognize the availability of unreasonable belief in age as a defence, on the basis of R v K, described earlier.
34 Again the prosecution might seek to fall back to the offence of “unlawful sexual intercourse” given at article 4 of the Loi (1895) Modifiant le Droit Criminel which originally carried a maximum two year penalty, subsequently increased to five years by the Loi (1997) Modifiant le Droit Criminel. Here again there is the defence, in statutory form, that the accused “… avait des raisons suffisantes pour croire que la fille etait agée de seize ans accomplis” and again it is to be supposed in the light of R v K that an unreasonable belief will suffice.
35 Under the 2003 Act, while none of the presumptions about consent (either conclusive or rebuttable) applies on these supposed facts, the basic definition of consent (“a person consents if he agrees by choice, and has the freedom and capacity to make that choice”) is likely to assist the jury to a finding of no consent. This will be particularly so if the Court of Appeal develops a standard direction along the lines recommended by the framers of the legislation (although not embodied in it); “do not assume that the complainant did freely agree just because she did not say or do anything, protest or resist or was not physically injured.”
36 Additionally a truly decisive advance comes in the question of the accused’s belief that the girl was consenting. Now the mistaken belief will have to be shown to be reasonable and the accused’s own conduct will feature in the reckoning. It is to be recalled that s.1(2) now provides: “whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents.” Plainly A should take the opportunity to be clear that B does consent. In most situations this is an easy thing to do and there is a strong reason for doing it. This is not an introduction of strict liability regarding the absence of consent – it simply stipulates an express requirement that A acted as a reasonable person should have acted in all the circumstances in order to ascertain consent.
37 On the supposed facts of the accused’s conduct on the occasion charged, a conviction for rape seems very much more likely, viewed against the requirements of the 2003 Act.
Conclusion
38 The changes in the law of sexual offending introduced by the 2003 Act are as fundamental and extensive as the changes which were brought about when the Larceny Act, 1916 was replaced by the Theft Act, 1968. It is to be supposed that in an analogous way the new provisions will take time to bed down and that early statutory amendment may take place when it is found that some of the new provisions do not achieve the effects which were intended. The Act is open to extensive criticism in the ways described above but some things about it are of undeniable worth. Even leaving aside the welcome criminalisation of some of the areas of conduct identified earlier, the new provisions about consent and belief in consent and about age – if their intended effect is proven by case law – represent a truly desirable advance. It would be “the Jersey way” in due course to adopt the proven best features of the statute and to disregard that which is neither helpful nor germane to this jurisdiction. Long may it continue.
39 It is incidentally to be hoped that on any occasion of revision in Jersey the opportunity would be grasped to remove the corroboration requirements in the law of evidence relating to sexual offences, which requirements had disappeared in England even before the advent of the 2003 Act.
Cyril Whelan is an advocate of the Royal Court and is a Principal Legal Adviser in the Law Officers’ Department, Jersey.
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