criminal-law united-kingdom
Is it classed as sexual activity?
<p>In relation to the definition of ‘sexual activity’ I am wondering if explicit/nude photos would be classed as &quot;sexual activity&quot; under <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/4" rel="nofollow noreferrer">S4 SOA 2003</a>?</p>

<h1>Do nudes count as &quot;sexual activity&quot;?</h1>
<p>Yes, look at <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/78" rel="nofollow noreferrer">Section 78</a> of the Act (emphasis mine):</p>
<blockquote>
<p>For the purposes of this Part (except sections 15A and 71), penetration, touching or <strong>any other activity</strong> is sexual if a reasonable person would consider that—</p>
<p>(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or</p>
<p>(b) 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.</p>
</blockquote>
<p>Nudes would probably be considered sexual by the reasonable person under subsection A and so the taking of nude/explicit photos would be considered a &quot;sexual activity&quot; under Section 4.</p>
<h1>Has an offence under S4 been committed if A is a catfisher?</h1>
<p>Only if the person sending nudes (B) doesn't consent to doing so. Deceit in such a fashion would seemingly vitiate consent (since B is unable to make an informed choice) and therefore potentially render it null and void under <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/76" rel="nofollow noreferrer">Section 75</a> of the Act. Most likely under subsection (a) unless B knows the person &quot;personally&quot;.</p>
<blockquote>
<p>(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—</p>
<p>(a) that the complainant did not consent to the relevant act, and</p>
<p>(b) that the defendant did not believe that the complainant consented to the relevant act.</p>
<p>(2) The circumstances are that—</p>
<p>(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;</p>
<p>(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.</p>
</blockquote>
<p>This means that S4(1)(c) would apply and it would appear that the offence is made out:</p>
<blockquote>
<p>(1) A person (A) commits an offence if—</p>
<p>(a) he intentionally causes another person (B) to engage in an activity,</p>
<p>(b) the activity is sexual,</p>
<p>(c) B does not consent to engaging in the activity, and</p>
<p>(d) A does not reasonably believe that B consents.</p>
</blockquote>
<p>Ultimately, whether such deceit gives rise to a criminal conviction would be for a jury to determine.</p>
