A Guide to Sexual Assault Defences

If you have been charged with sexual assault, it is likely that you are considering whether you can defend yourself in court. Being accused of an offence of a sexual nature is a stressful experience. You are no doubt feeling worried and confused, and you might be questioning your options. Your trial date may be some months away and you probably have many concerns about what will take place on that day. This article explains the offence of sexual assault. It discusses the types of evidence that the prosecution will rely upon in their case against you and looks at the maximum sentence that you could face. Most importantly, it considers the defences that you may be able to rely upon.

An overview of the offence of sexual assault

The offence of sexual assault occurs where a person intentionally touches another person, in a sexual way, without their consent, and without the reasonable belief that they consent. It is set out Section 3 of the Sexual Offences Act 2003.

Whether touching is to be considered ‘sexual’ is a question of law. The law considers that penetration, touching, or any other activity is sexual if a reasonable person would consider it to be so. An act might be sexual because of the nature of the act itself, or because of the circumstances surrounding it, or because of the purpose of the defendant when committing the act.

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 to agree to it.

The legal age for sexual activity is sixteen years old. Therefore, if the victim is 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, more serious, offence applies: sexual assault of a child under 13.

What kind of evidence is used in sexual assault cases?

The two key matters for the prosecution to prove will be firstly that the sexual assault took place, and secondly that there was no valid consent or the reasonable belief of such consent.

When arrested for a sexual offence, the police will almost certainly take DNA and other biometric information. They may attempt to establish a link to the victim by seeking to match biometric information with swabs taken from them. If the alleged act took place in public, the prosecution will look for CCTV footage, or witness testimonies of anyone who was present to attest to what happened.

For the issue of consent, the most important evidence is likely to be the witness evidence of the victim, and your own testimony, should you decide to give one. If either you or the victim were 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 your blood alcohol levels. They may also track down witnesses who saw you or the victim prior to, or at the time of events, such as a taxi driver or a bartender.

What is the maximum sentence for sexual assault cases?

According to the law, the maximum sentence for sexual assault of a person over the age of 16 years old is 10 years’ imprisonment. The minimum sentence is a community order or a fine. The court will decide upon the length of the sentence by looking at the culpability (blameworthiness) of the defendant and the harm caused to the victim.

Factors that suggest a high culpability include a significant degree of planning; committing the offence with others; the abuse of trust, or recording the offence, for example on a mobile phone. Racially or religiously aggravated offences, or offences motivated by a hostility to the victim based on their disability or sexual orientation, will also be considered more serious.

When looking at the harm caused to the victim, factors such as abduction, severe psychological or physical harm, and forced entry into a home, would make an offence more serious. Touching of naked genitalia or breasts would also be considered more harmful than touching a different body part or touching through clothes. For more detail, see the sentencing guidelines here.

What are the applicable sexual assault defences?

Offences relating to sexual assault do not have many specialist corresponding defences, but one that is often raised is ‘consent’. Where the specialist defence of consent does not apply, a general defence might.

Consent

Where there is evidence that the sexual touching took place, the most common defences centre around consent.

It will be a valid defence if you can show that the victim consented to the activity. If a person has consumed too much alcohol or another inebriating substance, they may not have the mental capacity to give their valid consent at that time. Whether the victim was so inebriated that they were unable to consent is a question for the jury, depending on the facts of the case.

Alternatively, it is possible to defend yourself on the basis that you had a reasonable belief that the victim consented. The jury will be asked to decide:

1. Did you believe that the victim consented?
2. Was your belief reasonable? You will not be able to rely upon an honest but unreasonable belief in consent.

When looking at whether your belief that the victim consented to the sexual activity is reasonable, the court will look at all the circumstances including any steps you took to check if the victim consented. This could include asking them directly or indirectly, as well as physical actions and body language.

If you were over the age of sixteen, and you were aware that the victim was under the age of sixteen, your belief in their consent is irrelevant because they are incapable of consent according to the law. However, if you reasonably believed that the victim was over the age of sixteen, there may be a defence available to you.

In certain circumstances, the law assumes that the victim did not consent, unless proven otherwise. These include, if at the time of the act, or immediately before it:

• violence was used or threatened against the victim or another person
• the victim was unlawfully detained
• the victim was asleep or unconscious
• because of a physical disability, the victim would not have been able to communicate consent
• the victim was drugged or given a substance that stupefied or over-powered them

General defences

A ‘general defence’ to relates to the mindset of the defendant at the time of the offence. There are several general defences that could apply to sexual assault.

Duress: This is where you were forced or pressurised by a person to commit an offence. The court will consider whether you reasonably feared death or serious injury if you did not commit the act, and whether a reasonable person in your situation would have shared those fears and responded in the same way.

Necessity: Similar to duress, this is where you were required by a set of circumstances to commit the offence. You would have to show that you believed that there would be very serious consequences for you or someone else if you did not commit the act.

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 be acquitted on the grounds of insanity.

Mistake: This defence could apply if you were mistaken as to certain factual circumstances and would not have committed the offence is you had known otherwise.

Automatism: If you were unaware of your actions at the time of committing the offence, in some circumstances, you may be able to rely upon the defence of automatism. 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 may lead to you being acquitted or convicted of a lesser charge. Defences are a complex area of law so it is always best to seek advice from a criminal defence solicitor on the specific facts of your case.

Where to find help with sexual assault offences

If you or a loved one has been charged with sexual assault, contact Stuart Miller Solicitors today. Our highly experienced team is here to help you. We provide a professional and non-judgmental service, tailored to meet your requirements, and we will advise you on your options and help you to make well-informed decisions on your case. Contact us for a no obligation consultation today.

(This page was last updated on November 22, 2023.)

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