“Sexual”
Part 1 Sexual Offences
[F169 For the purposes of this Part ([F170 except sections 15A [F171 , 66B to 66DF171] [F172 , 69F172] and 71 F170] ), 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 person in relation to it (or both) it is sexual.F169]
The court adopted the statutory definition of sexual activity and treated section 78(b) as the applicable limb. It required the jury to apply the statutory two-stage approach. (see paras [31]–[35]) The court applied the limb requiring a reasonable person to consider that activity may be sexual because of its nature and sexual because of its circumstances or purpose. Purpose may be relevant, but need not be proved as an additional intent. (see paras [31]–[35])
Defined the statutory alternatives by which touching or other activity is sexual. The court used the definition to reject a categorical rule that below-knee touching cannot be sexual. (see paras [21]; [26]) Applied the limb under which conduct that may be sexual by its nature is sexual because of its circumstances, a person’s purpose, or both. The statutory inquiry was for the jury on the evidence. (see para [26])
The court held that the section 78(a) inquiry concerns the nature of the act itself, irrespective of its circumstances or any person’s purpose. Deliberate touching of a woman’s breast on the evidence was inherently sexual, so section 78(b) did not arise. (see paras [30]; [35]-[36])
What each judgment says about section 78 is in the case-law panel in the full Act.
145.Section 78 defines "sexual" for the purposes of this Part. This definition is relevant to many of the offences under this Part. For example, section 2(1)(b) refers to penetration which is sexual and section 3(1)(b) refers to touching which is sexual.
146.There are two alternative limbs to the definition of “sexual” in section 78. Paragraph (a) covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse. Paragraph (b) covers activity that the reasonable person would consider, because of its nature, may or may not be sexual depending on the circumstances or the intentions of the person carrying it out, or both: for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason. Where the activity is, for example, oral sex, it seems likely that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (eg a doctor’s surgery) and the purpose of any of the participants (if the doctor’s purpose is medical, the activity will not be sexual; if the doctor’s purpose is sexual, the activity also is likely to be sexual).
147.If, from looking at the nature of the activity, it would not appear to the reasonable person that the activity might be sexual, the activity does not meet the test in either paragraph (a) or (b), even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes do not fall within the definition of sexual activity.