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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.
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:
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.
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.
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.
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:
To assess the harm inflicted, the court looks at whether:
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.
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.
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).
As with any crime, there are a number of general defences available to those charged with assault by penetration. These include:
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:
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.
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).
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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