Key Supreme Court Rulings on Sexual Offences (2024-2026)

The case law of the Supreme Court on sexual offences evolves constantly. As specialist criminal lawyers, we have compiled the key doctrinal lines of the period: they determine questions as decisive as how consent is assessed, when evidence is valid and how conduct arising from new technologies is classified.

On Consent

The Supreme Court describes consent as "contextual and dynamic": it is not a single act given at the start of an encounter that covers everything, but something that must be present at every moment and for every specific act. It is also withdrawable at any time: whoever consented at the outset can stop consenting, and continuing the act from that point onwards has no legal cover.

The second central idea is that silence and passivity do not amount to consent: the mere absence of opposition is not a "yes". The practical consequence for trials is direct: the debate no longer revolves around whether the victim resisted, but around whether there were unequivocal acts from which to infer that the other person consented at that specific moment. For the defence, this shifts the evidentiary effort towards a painstaking reconstruction of the context of the encounter.

On Evidence

In offences usually committed in private, the victim's testimony is often the central evidence, and the Supreme Court reinforces the criteria by which it must be assessed:

• Absence of a subjective ulterior motive: no spurious motives —resentment, enmity, an interest in the outcome— capable of undermining the testimony's reliability.
• Plausibility: an internally coherent account, corroborated where possible by peripheral objective data.
• Persistence: a version maintained in its essentials throughout the proceedings, without serious contradictions or retractions.

These are not automatic requirements whose presence compels a conviction, but tools of assessment; precisely for that reason the defence can and must use them to subject the testimony to rigorous scrutiny. On pre-constituted evidence, an essential safeguard is also stressed: the defence must be able to put questions when it is taken. An interview conducted without cross-examination is compromised evidence.

Mistake of Fact

A mistake as to a minor's age is admissible where appearance and digital profile made it reasonable to believe they were of age. The rationale is classic: someone who reasonably believes the other person is an adult does not act with the intent the offence requires as to that element.

It is not enough, however, simply to claim it. The courts examine objective indicators: physical appearance, what the person themselves said about their age, how they presented themselves on their profiles and social media, and the context in which contact took place. A defence invoking the mistake must build it on that evidentiary material, showing that the erroneous belief was reasonable in the specific circumstances of the case.

New Technologies

Sexual deepfakes are dealt with under Art. 173 CP where they are "sufficiently realistic". The logic of the classification: Art. 173 protects moral integrity against degrading treatment, and circulating false but believable sexual images of a person constitutes a serious form of humiliation. The realism requirement matters for the defence: the degree of verisimilitude of the fabricated material is an element to be examined by experts in each case.

Where the victim is a minor, the classification changes: the material is treated as child pornography, under the rules governing those offences, and the artificial nature of the image does not exclude the criminal response.

Sentence Reviews

Legal reforms in this field have also obliged the courts to rule on the review of sentences: where a later legal change is more favourable, the convicted person can apply for their sentence to be reviewed. The comparison between the old framework and the new one is made case by case, in light of the specific circumstances of each conviction, which has produced a body of decisions that any defence in this field must know and handle.