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18 May 2020

Is a kiss on a cheek a sexual offence?

2 mins

The weekend saw the latest press reports on what appeared to be a disproportionate response by the police to a Covid-related incident. It was reported that a woman in her 70s contacted the police after a lorry driver allegedly kissed her on the cheek to thank her for assisting him when his lorry got stuck under a bridge.

It is unclear whether the woman contacted the police because this was an alleged breach of Covid regulations or because of the alleged sexual assault. Many who took to Twitter and social media mocked the police for overreacting and questioned whether this could in fact amount to sexual assault.

To decide if an activity is sexual, the police must first look at the nature of the activity. If that activity is by its nature sexual, then it is sexual. A kiss is not always sexual and could be a greeting or a thank you.

Where the nature of the activity may or may not be sexual, the police should consider the circumstances or purpose (or both) of the suspect in deciding whether it is sexual. For example, it has been held that stroking a woman’s leg over trousers and below the knee was capable of amounting to a sexual assault when the purpose was for some form of sexual gratification.

Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.

It is certainly debatable whether the lorry driver’s actions, as reported, amount to ‘sexual activity’ due to the circumstances of the alleged incident. If the incident is as reported, it is questionable whether it meets the evidential and public interest test required to prosecute. If the police are investigating a Covid –related offence, would it be in the public interest to prosecute in these circumstances?

Perhaps a more important question is why did the police use their limited and stretched resources in making a public appeal for witnesses for an incident which is highly unlikely to be in the public interest to prosecute? We have previously commented on the overzealous nature of some policing during this stressful time of lockdown, such public misjudgments in making this appeal only reduces the police’s credibility and the faith the public have in their ability to police proportionately.

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