Kissing a woman’s hand was ‘chivalry’ not sexual assault – the case...

Kissing a woman’s hand was ‘chivalry’ not sexual assault – the case of Vidas Cernevicius

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Introduction

Vidas Cernevicius, a 47 year old Lithuanian was acquitted of sexual assault by Wrexham Magistrates’ Court on 30th July 2015 in a case that caused a bit of a stir on social media. It certainly gives a good example of how difficult the law relating to sexual offences can be.

Facts

On 12th January 2015 Vidas Cernevicius, a 47 year old Lithuanian, got on a bus and sat behind a woman saying ‘inappropriate things’ to the complainat, and repeatedly kissing her hand. The complainant said that she was made to feel uncomfortable and moved to the front of the bus.

However, Mr Cernevicius followed her and carried on taking hold of her hand and kissing it.

The complainant again asked Mr Cernevicius to “leave her alone but as the bus passed a pub he said he would take her for a drink. She refused, he asked why not and when she said she was on her way home to her husband, he said to her “I am your husband now.”

The defendant had told her that women in his country “would be grateful for the attention” he was giving her, but she told him she was not.

He repeatedly said he would take her for a drink and when she got up and went to stand by the driver he stood close behind her. The defendant made her feel very uncomfortable – she could feel him breathing on her neck and she could feel the top of his body against hers, she said. He then kissed her on the hand that was holding the support pole.

Court Ruling

It seems that the magistrates accepted the above facts. There are two sides to every story though. Mr Cernevicius’ account was that there was nothing sexual about what he was doing – “he had no sexual motivation whatsoever; he was simply being friendly and polite”.

In a bit of a twist on the usual rules of evidence, the defence “produced a document from Wikipedia which he said showed that hand-kissing originated in Polish Lithuania in the 17th and 18th centuries.” Apparently, “It was considered a respectful way for a gentleman to greet a lady”.

This was also accepted by the magistrates so, finding that there was no sexual motivation, they found Mr Cernevicius not guilty of the charge.

What’s the law on Sexual Assault?

The law in this area is pretty complicated. Sexual Assault is defined in s3 Sexual Offences Act 2003 as

A person (A) commits an offence if—

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

Here, there was clearly an intentional touching done without consent. It’s probably the case that Mr Cernevicius did not believe that the complainant was consenting. Even if he did, the law now requires a reasonable belief in consent which there was not here.

So, the question is ‘what is meant by ‘sexual”?

This is further defined in s78 Sexual Offences Act 2003:

touching … is sexual if a reasonable person would consider that—

(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(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”

This was considered in H [2005] EWCA Crim 732 (unfortunately not online). This said that the first question to be asked is whether the touching ‘might be sexual’. If no, then that is the end of the matter. If it ‘might’ be sexual (this is essentially a threshold test), then the question is “whether in view of the circumstances and/or the purpose of any person in relation to the touching (or both), the touching was in fact sexual”.

Here, the Court accepted that the purpose was not sexual, and therefore that Mr Cernevicius was not guilty. This is really a question of fact for the magistrates.

Can the prosecution appeal?

They can, but only if there is some error of law.

Here, it seems clear that kissing the hand is not one that is sexual because of its nature, therefore the magistrates were right to move on to the next question. Here, it seems clear that kissing someone’s hand could be sexual, so it’s over to a judgment as to whether in all the circumstances it was.

Given that there was found to be no sexual motivation, even though the circumstances were suggestive of a sexual motive, this would not be enough to convert it to a sexual assault.

The only basis for an appeal then would be if the findings of fact were unreasonable. That is a very high threshold. It would depend on the full findings of the magistrates.

Wasn’t he guilty of common assault?

Yes, on the facts found. However, it appears that the CPS hadn’t charged him with that, and therefore it was not open to the Court to find him guilty of it.

As common assault is summary only, by the time of the trial it was too late for the CPS to have added this as an alternative charge. It’s not clear why this wasn’t done beforehand.

Does this create a precedent? Can I go and kiss womens hands and not get in trouble?

In a word ‘no’. In a few more words ‘of course not, don’t be ridiculous’.

Firstly, as stated above – even if you were to not be convicted of sexual assault, you would still be liable to be found guilty of common assault. This is a serious offence in its own right, for which you can go to prison.

But more importantly, a future court may well not find that there was no sexual motivation at all involved in similar conduct.

In any event, a decision of a Magistrates’ Court is not binding on anybody. It is wrong to see this as anything other than what it is – a decision on its own facts, based on the evidence that Mr Cernevicius gave.

I am not suggesting in any way that Mr Cernevicius is guilty, but he clearly has his own set of beliefs about the world and it is far from guaranteed (to put it mildly) that a different Court would come to the same conclusion with a different person.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

7 COMMENTS

  1. I can buy “cultural difference up to and including the first kiss but once she said No that should have been the end of it.

    • Agree, but the repetition after she said ‘no’ founds a common assault and/or a harassment charge, but don’t think it can convert that which isn’t sexual to a sexual assault?

  2. It does seem a bit odd that common assault wasn’t added as an alternative charge. Could the CPS have been worried about their statistics (if these were done on a “primary offence” basis, a conviction for common assault would not have counted as a conviction)?

  3. “But more importantly, a future court may well not find that there is was no sexual motivation in it all.”

    Think this sentence needs proofreading again..!

  4. “But more importantly, a future court may well not find that there was no sexual motivation at all involved in similar conduct.”

    Still one not too many, Dan!

    • It seems OK to me. I think that Dan was saying that a future court might find that there was a sexual motive to such conduct. If that is the case then his revised formulation seems correct, because the “not” and the “no” cancel out. It would probably have been better to avoid the double negative though 🙂

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