R v H  1 WLR 2005
Definition of ‘sexual’/‘touching’ in ss.78-79 of the Sexual Offences Act 2003
The defendant propositioned the victim sexually and attempted to pull her towards him and place a hand over her mouth by grabbing at the pocket of her tracksuit. The defendant was convicted of sexual assault contrary to s.3 of the Sexual Offences Act 2003.
S.78 of the Sexual Offences Act 2003 defines an act as sexual if a reasonable person would consider that either it is sexual by nature or ‘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’. S.79 defines ‘touching’ as including touching with a part of the body or anything else, ‘through anything’.
The defendant argued that touching a victim’s clothing did not count as touching the victim. He also argued that a reasonable person would consider the touching sexual.
The conviction was upheld. The Court of Appeal believed that Parliament did not intend to exclude touching a person’s clothing from the definition of sexual assault, given the broad definition in s.79.
The Court of Appeal defined the test for determining whether touching is ‘sexual’ in cases where the touching is not inherently sexual:
- Does the jury consider that the touching could be sexual?
- If so, in all the circumstances of the case, does the jury consider that the purpose of the touching was sexual?
If so, the touching is sexual within the meaning of the Act. While the judge’s directions in the present case had not been entirely adequate as he had not adopted this two-stage approach, the jury had been entitled to conclude that the touching was sexual. The convictions were therefore safe.