A Guide to Digital Penetration Cases

If you have been charged with the sexual offence of digital penetration, you are almost certainly feeling anxious about your impending court case. Perhaps you are wondering what the prosecution will need to prove in order to convict you, and the types of evidence that they are likely to seek to obtain and rely upon. You may be concerned about the length of the sentence that you could face if you are convicted. You might also be looking for information in respect of the defences that could be available to you. If these questions are on your mind, keep reading. In this article we explain the law and sentencing guidance on this topic.

An overview of the offence of digital penetration

Digital penetration is a form of assault by penetration, which is set out at Section 2 of the Sexual Offences Act 2003. To be convicted of this offence, it must be found that the defendant:

1. Intentionally penetrated the vagina or anus of another person
2. With a part of his or her body or anything else (in digital penetration cases, this would be a finger)
3. The other person did not consent to the penetration
4. The defendant did not reasonably believe that the other person consented to the penetration

This is an offence that can be committed by persons of either gender.

According to Section 74 of the Sexual Offences Act 2003, consent is agreement to an activity by choice, where a person has both the freedom and the mental ability to make the choice. In order for consent for sexual activity to be valid, the person agreeing has to understand what is happening so that they can make an informed choice whether to agree to it.

What is digital penetration of a minor?

The legal age for sexual activity in the UK is sixteen years old. If the victim was younger than sixteen, the law says that they are not capable of consent, even if they agreed to the activity. If the victim was under the age of thirteen, a separate and much more serious offence applies: assault of a child under 13 by penetration.

What kind of evidence is used in digital penetration cases?

The prosecution will have to prove that the defendant penetrated, with their finger, the vagina or the anus (they will have to specify which) of the victim. In order to do this, they are likely to rely on DNA swabs taken from the victim shortly after the assault, if they are available. There may also be medical evidence of injuries caused to the alleged victim by the penetration, such as bruising, scratching, or wounding. The prosecution will also have to prove that there was no valid consent, or a lack of reasonable belief of such consent on the part of the defendant.

If the alleged act took place in public, the prosecution will look for CCTV footage or witness accounts of anyone who was present to testify to what happened. If, as is often the case, the alleged penetration took place in private, the evidence of the victim will be key to proving what happened. If the defendant pleads not guilty, their own testimony will be essential to their defence.

The issue of consent often rests squarely upon the testimony of both the victim and the defendant. This is why sexual assault cases are often said to be ‘her word against his’ (adjusted for gender where relevant, of course). If either the defendant or the victim was under the influence of drugs or alcohol at the time of events, the prosecution is likely to produce evidence of this (for example, test results showing alcohol or the presence of other illicit drugs in the blood or urine of those involved).

What is the maximum sentence for digital penetration?

The maximum sentence for assault by penetration is life imprisonment. However, if this is your first serious offence, you are unlikely to be given a sentence of life imprisonment. The court will assess the sentence that you should be given by looking at the harm caused to the victim and your culpability (blameworthiness) for what took place.

Harm

Factors such as severe psychological or physical harm would make the offence more serious. If the offence occurred in the context of an abduction, this would also increase the seriousness. Any efforts to degrade or humiliate the victim would also be taken into account. A prolonged incident, violence or threats of violence, forced entry into the victim’s house, or particular vulnerability of the victim (for example, mental illness) would also increase the seriousness of the offence.

Culpability

The defendant will be considered more blameworthy if there was a significant degree of planning, the offence was committed by a group of individuals acting together, or if the defendant used drugs or alcohol to facilitate the offence. Abuse of the trust of a victim, filming or recording the offence, being motivated by racial or religious grounds or by hostility based on the victim’s perceived sexual orientation would also increase the culpability of the defendant.

Depending on the court’s assessment of these factors, you could face a sentence of between 2 and 15 years of custody. In less serious cases, the offence may be dealt with by way of a high-level community order. More detail on the sentencing guidelines can be found here.

Assault by penetration is specified in Section 224A and Section 226 Criminal Justice Act 2003 as a serious sexual offence. This means that where:

1. a person is convicted of this offence, and they have already been convicted previously of a serious violent or sexual offence; and
2. the offence was committed after 20 November 2003
3. the court must impose a sentence for life imprisonment unless there are circumstances which relate to the defendant or the offence that would make it unjust to do so.

In practice, even if a life sentence is given, it does not mean that you would spend your whole life in prison. However, it does mean that even after release you would spend the rest of your life on licence.

What are the applicable digital penetration defences?

Consent

Where there is evidence that digital penetration took place, it will be a valid defence if you can show that the victim consented to the activity.

If the victim says that they did not consent, but at the time you believed that they did, you can defend yourself on the basis that you had a reasonable belief that the victim consented. The jury will be asked to decide if you believed that the victim consented, and whether this belief was reasonable.

If you were over the age of sixteen, and you knew that the victim was under the age of sixteen, according to the law, they were too young to give consent, even if they agreed to the penetration. However, if you reasonably believed that the victim was over the age of sixteen, there may be a defence available to you.

If the victim was drunk or under the influence of drugs, they may have lost the mental capacity to give their valid consent at that time. The jury will need to decide whether, on the facts of the case, the victim was so inebriated that they were unable to consent.

In certain circumstances, there is a presumption that the victim did not consent. These include, if at the time of the act, or immediately before it, the victim was:

• subjected to or threatened with violence
• unlawfully detained
• asleep or unconscious
• suffered from a physical disability that meant that they would not have been able to communicate consent
• drugged, or given a substance that stupefied or over-powered them

General defences

A ‘general defence’ relates to the defendant at the time of the offence, rather than the crime itself. There are several general defences that could apply to digital penetration:

Duress: This is where you were forced or pressurised by a person to commit an offence.

Insanity: If the court finds that you were suffering from a recognised mental illness that caused you to lack the mental capacity to commit the offence, you may have a defence.

Mistake: If you were mistaken as to certain factual circumstances and would not have committed the offence if you had known otherwise, you may be able to rely on mistake.

Automatism: This applies if you were unaware of your actions at the time of committing the offence. Generally, if you have voluntarily consumed alcohol or illicit drugs at the time of the offence, you would not be able to rely on this defence.

What will a successful defence achieve?

A successful defence could lead to you being acquitted. Alternatively, you may be convicted of a lesser crime, which generally means a less harsh punishment.

Where can I get help with digital penetration offences?

Being accused of a sexual offence is a stressful experience. You need the right team of lawyers by your side. For expert criminal defence advice, contact Stuart Miller Solicitors today. Our team of specialist solicitors are ready to advise, assist, and represent you, throughout your case. Instructing the right solicitor from the start might just make all the difference. Contact us for a no-obligation consultation today.