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Sexual Offences Articles

A Guide to Assault by Penetration Offences in the UK

When you are accused of assault by penetration, it can feel like the whole world is against you. You may be wondering what happens next in any potential criminal process and what your options are for securing your defence. This guide will provide an overview of assault by penetration offences in the UK and will answer some of the most common questions that lawyers get asked about this crime, including topics like defences and sentencing. It is important to remember that each case is unique, and you should speak to a qualified criminal defence solicitor with expertise in assault by penetration cases if you have specific questions about your own situation.

What is the offence of assault by penetration in the UK?

Section 2 of the Sexual Offences Act 2003 sets out the criminal offence of assault by penetration.

This offence involves the penetration of the vagina or the anus, with a body part, or another object. Note that it does not include penetration of the vagina or the anus with the penis, as this would be dealt with under the separate, and more serious, offence of rape.

For the offence of assault by penetration to be proven by the prosecution, the following must be present:

  1. The defendant must have penetrated the vagina or anus of the victim;
  2. The penetration must have been with their finger or another object;
  3. The penetration must have been sexual in nature;
  4. The victim must not have consented to the penetration;
  5. The defendant must not have reasonably believed that the victim consented.

Note that the requirement that the penetration be sexual in nature means that doctors, prison officers, and other professionals who may need to perform the above as a legitimate part of their jobs (for example, during gynaecological treatment) are excluded from the scope of this crime.

What does ‘consent’ mean for assault by penetration cases?

Consent is an agreement to partake in an activity by choice, where the person has both the liberty and psychological capability to make said decision. For consent during sexual acts to be valid, the parties involved must understand what is happening around them so they can provide informed consent. This means that if a person is intoxicated or under the influence of drugs, they may not have the ability to give proper consent anymore.

What is the age of consent for assault by penetration cases?

The legal age for sexual activity in England and Wales is 16 years old, regardless of gender or sexual orientation. If the victim is younger than 16, then under English law they are not capable of consenting to the act, even if they do actually understand what is going on and agree to the penetration. If the victim was under the age of 13 years old at time of incident, a separate and more serious offence applies: assault of a child under 13 by penetration.

What is the sentence for assault by penetration in the UK?

Assault by penetration is a grave offence that carries a maximum sentence of life in prison. However, sentencing can range from a community order to 19 years in custody. When making their decision, the court will consider how blameworthy the defendant is and how much harm was caused to the victim.

To assess blameworthiness, the court looks at whether:

  • there was any planning or pre-meditation involved in the offence
  • any alcohol or drugs were used on the victim to induce ‘consent’
  • a position of trust was abused by the defendant
  • there was a history of violence against the victim
  • there was any racial or religious motivation for the offence
  • there was hostility towards the victim due to their gender or sexual orientation
  • there was any financial or commercial motivation behind the offence

To assess the harm inflicted, the court looks at whether:

  • there was a large or dangerous object used in the penetration
  • the victim’s home was breached
  • the offence was prolonged or sustained over a period of time
  • there was a level of violence exhibited that is excessive to the commission of the offence itself
  • the victim was abducted
  • any additional degradation or humiliation of the victim took place (for example, live streaming the commission of the offence to a gang)
  • the victim was particularly vulnerable for any reason (for example, has a physical disability and could not defend themselves or prevent the assault)

Other factors may also be considered in assessing blameworthiness and harm. The full sentencing guidelines for the offence of assault by penetration can be found here.

Can you get community service for an assault by penetration case?

Note that where the court believes there is a realistic prospect of the offender being rehabilitated, a community order may be imposed under part 3 of Schedule 9 of the Sentencing Code. This is only likely to be applied where the offender would otherwise be given a short or moderate length custodial sentence – it will not apply in the most serious of cases, which warrant longer custodial sentences.

Will a judge be lenient in an assault by penetration case?

There is a chance that a judge would be lenient in an assault by penetration case, but they must still operate within the relevant sentencing guidelines.

Typically, a judge will look at several factors when deciding whether to mitigate a sentence (i.e. give a lower sentence than the one the sentencing guidelines states the offender should receive).

  • a lack of previous or recent convictions
  • remorse for the crime
  • good character generally and/or exemplary past conduct
  • youthfulness or old age resulting in a lack of maturity
  • mental disorder or learning disability, especially if it can be linked to why the offence was committed
  • physical disability or serious medical condition that requires urgent, long-term, or intensive treatment

Are there any defences available for assault by penetration offences?

As with any crime, there are a number of general defences available to those charged with assault by penetration. These include:

  • insanity or lack of capacity
  • self defence (though this would be difficult to argue in an assault by penetration case)
  • duress (where someone forced the offender to commit the offence)
  • involuntary intoxication
  • mistake (where you would not have committed the offence if you knew the true circumstances)
  • public interest immunity (such as in cases involving national security)

It is most common, however, for defendants to argue the defence of consent in assault by penetration cases. In other words, defendants argue that the alleged victim did actually consent to the penetration. To be successful with this defence, the defendant’s legal team must be able to prove that:

  • the defendant reasonably believed that the defendant was over the age of 16 and thus could consent (if the victim used a false identification card to show an older age, for example)
  • the alleged victim was not so heavily intoxicated or under the influence of drugs such that they could not validly consent to the penetration
  • other reasonable people would also believe that the victim consented, given the alleged victim’s body language, behaviour, and so on

Another potential defence is that the penetration was not sexual in nature, or not sexual motivated. Those who raise this defence are likely to be doctors or police officers who might have received complaints about actions carried out as part of their day-to-day work. These types of cases typically involve lengthy investigations and reviews from internal offices or ombudsmen (such as the Independent Office for Police Conduct, in the case of law enforcement) to ensure abuses are not systemic.

Do you go on the sex offenders register for an assault by penetration conviction?

Those who are convicted of a sexual offence in England and Wales generally are subject to notification requirements. In other words, they generally will get put on the Sexual Offenders Register (SOR).

Being on the register has serious implications for your day-to-day life. These include having to notify the police within three days if you file to change your name or address, change your bank account, or if you will travel abroad.

You will also likely be prohibited from living in certain areas (for example, within a set radius of a school) and will not be able to engage in employment relating to vulnerable people (care homes, schools, nurseries, and so on).

Where to get more help with assault by penetration offences?

If you or someone you care about is facing a charge of assault by penetration, or if the criminal prosecution process has already begun, reach out to the experts at Stuart Miller Solicitors today. Our team has decades worth of experience defending sexual offences cases, including assault by penetration offences, and – if the facts support it – we may even be able to get the case dropped before it goes to trial. Contact us today for a free, no obligation, and non-judgmental consultation.

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