QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE TOULSON
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR J OATES (instructed by CPS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(1) A person (A) commits an offence if-
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
(2) B is unable to refuse if-
(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) he is unable to communicate such a choice to A."
"She stated that Ronald Hulme touched her hand and that she did not want him to do so and should have told him that. She did pull her hand away and thought he should have known then. He also touched her hair and put his hand on her thigh and stroked it. He told her that he loved her and wanted her about six times. She did not respond to that. He touched her private parts, her 'fan' and he was feeling it and pressing hard about 12 times and she did not know what to do or say but it made her feel sad, hurt and upset. [She] agreed in cross-examination that the vagina was private and that no one should touch it unless you let them. She wanted him to stop but did not know what to do. Then Ronald Hulme unzipped his trousers and placed her hand inside his trousers onto his soft penis which was outside his underpants and trousers. He asked if she loved him and wanted him to and she replied 'no'. [She] said she touched his penis because he made her and because he wanted her to although she did not want to. [She] said that she agreed that if someone says they want you they want sex with you and if they touch your 'fan' it is because they want sex with you. It is right that Russ wanted to have sex. He also tried to kiss her. She had received sex education from her mother and understood the nature of sexual relations and that penises and vaginas were used for sexual intercourse and that was something people do when married and want babies and when they love each other."
"We found that [J] has a mental capacity well below her actual age and she was childlike, naive and eager to co-operate in the way that she gave her evidence. We considered that [J] was a vulnerable lady of limited mental ability or capacity. We were satisfied that she understood the nature of sexual relations but she did not have the capacity to understand that when placed in a situation of being touched sexually that she could choose not to agree to it. The complainant gave evidence that she pulled her hand away initially when the appellant held it in his hand and that when he asked her if she wanted him she replied 'no' but we are of the view that she was saying no to sexual intercourse which was the question being put to her by the appellant and not to whether she agreed to being touched in the way that he was touching her and placing her hand on his penis. We found that she was not capable of stopping the appellant from carrying out sexual activity with her due to her mental disorder although she was clearly upset by his actions."
"We found the defendant guilty and in our reasons stated that [J] is a person of limited mental capacity and a vulnerable lady. The defendant had admitted touching, kissing and stroking her and that his zip was open with his penis exposed. We stated that [J and other witnesses] were all credible witnesses and we accepted their evidence."