2003.001 Sexual Ethics and Criminal Law, Lester ... - Francis Bennion

Bill's elaborate de®nition gets us no nearer grasping which of
The
six is intended here. We are forced to turn for guidance to the
the
80 de®nes ``sexual'' for the purposes of this Part. This
Clause
is relevant to many of the o€ences under this Part.
de®nition
example, clause 3(1)(b) refers to penetration which is
For
and clause 9(1)(b) refers to touching which is sexual.
sexual
(a) requires the reasonable person to look at the
Paragraph
of the activity in question. If, from looking at the
nature
of the activity, it would not occur to the reasonable
nature
that it would be sexual, it does not meet the test, even
person
a particular individual may obtain sexual grati®cation from
if
out the activity. The e€ect of this is that obscure
carrying
do not fall within the de®nition of sexual activity. The
fetishes
of some activities is such that they are obviously
nature
such as sexual intercourse, and they would meet the
sexual,
Other activities may or may not be sexual depending on
test.
circumstances and the intentions of the people carrying
the
out, for example, digital penetration of the vagina may
them
sexual or may be carried out for a medical reason. These
be
would meet the test in paragraph (a) since the
activities
person need only think that the activities may be
reasonable
he does not need to come to any conclusion about the
sexual;
Activities which meet the test in paragraph (a) must
matter.
be considered under paragraph (b). In order to assess
then
the activity is sexual, the reasonable person must
whether
at any or all of the following factors: the nature of the
look
the circumstances in which the activity is carried out;
activity;
the purpose of any of the participants. Where the activity
and
for example, oral sex, it seems likely that the reasonable
is,
would only need to consider the nature of the activity
person
determine that it is sexual. But where it is digital
to
of the vagina, the reasonable person would need
penetration
consider the nature of the activity (it may or may not be
to
the circumstances in which it is carried out (if it is in a
sexual),
surgery, it is probably not sexual) and the purpose of
doctor's
of the participants (if the doctor's purpose is medical, the
any
o
cial explanatory notes.
28