Can an unwanted kiss amount to a sexual assault?

Is an unwanted kiss from a stranger capable of amounting to a sexual assault? It is the kind of question that divides opinion. Is the criminalisation of such behaviour ‘political correctness gone mad’ or a justifiable shift towards accountability for conduct that amounts to a gross invasion of personal liberty. In this case (Attorney General’s Reference (Section 36 of the CJA 1972) (No 1 of 2020) [2020] EWCA 1665), the defendant sat next to the complainant on a busy train in Newcastle grabbed her and kissed her on the lips. He was charged with sexual assault contrary to section 3 Sexual Offences Act 2003.  It was his case that he had heard people mocking the complainant (who he did not know) and he was trying to make her feel better. Whilst he accepted kissing her, the Defendant said that he had not intended for the kiss to be ‘sexual’. The sole issue for the jury was whether was the kiss was ‘sexual’. The trial judge ruled that the jury must be satisfied that the Defendant had intended for the kiss to be ‘sexual’ if they were to convict him. The Defendant was duly acquitted.

The Crown was not able to appeal the acquittal but under section 36 Criminal Justice Act 1972, the Attorney General can refer a point of law to the Court of Appeal for determination following an acquittal. This has no effect on the trial or the verdict but the decision is binding on future similar cases. Under section 3 Sexual Offences Act 2003 a person commits an offence if he:

• Intentionally touches another person;
• The touching is sexual;
• The other person does not consent to the touching (and there is no reasonable belief that she does consent).

The mens rea of the offence is the intention to touch (and the lack of reasonable belief about consent) so was the trial judge correct in inserting the additional mental element of intending his touching to be sexual?

What is ‘sexual’ is defined by section 78 of the 2003 Act, namely:

1. It is by its nature sexual; or
2. It may be sexual depending on the circumstances.

Thus, there is some conduct which is sexual per se (which falls into category 1) and there some conduct which is not sexual per se but may be sexual depending on all the circumstances (category 2).  It was agreed by all parties that a ‘kiss on the lips’ may not be sexual and hence it falls into the second category of cases where the jury is invited to look at the individual circumstances of the case.

So does that determination by the jury require it to be satisfied that the defendant intended it to be sexual or is it a matter for a reasonable person to decide? The Court of Appeal held that there was no additional element to the mens rea of the offence but instead: “the jury would need to consider, bearing in mind why the defendant behaved in that way (along with other factors), whether the irresistible inference was that he intended to assault his victim in a manner which the jury, as right-minded persons, would clearly think was [sexual]”.

This does not mean that the defendant would have been convicted of the offence but rather that the prosecution did not have to prove that he intended his touching be sexual (or have a sexual motive). Rather, the trial judge ought to have invited the jury to consider all of the evidence they had heard and decide whether the touching (kissing) was ‘sexual’ including his intentions.

The debate about the criminalisation of such behaviour goes on. In practice, the Crown Prosecution Service will continue to prosecute cases involving unwanted kissing and slapped and pinched bottoms and it will be for a jury to decide in all the circumstances whether such behaviour is sexual or indeed violent if common assault is charged as an alternative.

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