If you have been charged with indecent assault – which is now the updated offence of sexual assault – you may be feeling embarrassed and worried. Regardless of whether you intend to plead guilty or not guilty, you are probably concerned about the consequences of such an allegation being made against you. You might be questioning the definition of sexual assault, and wondering how a case might be made against you. Perhaps you are wondering how the judge will approach sentencing in your case, whether you will go to prison, and the length of the sentence that you could face. This article provides a definition of the new offence of sexual assault, and explains the former offence of indecent assault. It explains the sentencing guidelines for sexual assault offence and provides examples of the types of incidents that could be charged under this offence.
Sexual assault is an offence of sexual touching, defined in Section 3 of the Sexual Offences Act 2003. Before the sexual offences act came into force, sexual assault was known as indecent 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.
The question of when touching is sexual is set out in the law at Section 78 of the Sexual Offences Act 2003. This explains 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. This means, for example, that if a person is drunk or under the influence of drugs, they may lose the capacity to consent.
The legal age for sexual activity is sixteen years old. 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.
If you have read information online about aggravated sexual assault, you should know that aggravated sexual assault is not an offence that exists under the law of England and Wales. It is recognised as an offence in some other jurisdictions, such as certain states within the United States of America.
Sexual assault has replaced the older offence of indecent assault. The offence of indecent assault was set out in the Sexual Offences Act 1956, which has now been repealed. You can still be prosecuted for indecent assault in relation to crimes that took place prior to 2003, when the new law governing ‘sexual assault’ came into force. For example, in recent years, there have been many criminal investigations into alleged sexual offences that took place in children’s homes between 1940’s and the 1990’s. Where these alleged crimes took place after 1956 but before 2003, a charge of indecent assault will be brought because this was the law that was in place at the time of the offence.
Gross indecency is another old offence that no longer exists in the law of England and Wales. It was never defined in statute, however, it was a term that was used to criminalise sexual activities which were seen to be morally undesirable. It was often used to prosecute homosexual activities between men, at the time when homosexuality was illegal. It usually referred to sexual acts that do not amount to sexual intercourse.
The Sexual Offences Act 2003 decriminalised consensual sexual activity between adults that was previously criminalised under the law of gross indecency. Non-consensual sexual acts, or sexual acts with children, that were considered to be gross indecency are now prosecuted under offences such as sexual assault and sexual activity with a child.
The Sexual Offences Act 2003 states that 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 which 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 to be 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 example, an offence where the offender broke and entered into the home of a vulnerable person, sexually assaulted them and filmed it, would be likely to receive a sentence of at least 4 years’ custody for the sexual offence. The perpetrators would probably also receive additional convictions for unlawfully entering the home. By contrast, an offence that took place in circumstances where two adults were engaged in consensual activity, but one withdrew their consent, and the other did not stop touching them when they asked them to, would probably receive a custodial sentence of one year or less, or a high level community order. For more detail, see the sentencing guidelines here.
The offence of sexual touching of a child under 13 is punishable with a maximum sentence of 14 years custody. The lowest available sentence is a community order. The offence will be treated more seriously where the child is particularly young or vulnerable.
For example, an adult who sexually touches a child under the age of 10 years old would receive a longer prison sentence than a 14 year old who sexually touches a 12 year old, who claimed she was his girlfriend, and said that she had consented to the activity. Whilst a 12 year old is deemed too young to consent, this could lead to the perpetrator receiving a more lenient sentence.
If you are suspected of sexual assault, do not delay in seeking specialist legal advice. Our team of criminal defence solicitors can attend your police interview with you, and advise you on your options throughout your trial. We provide an honest, non-judgmental, and efficient service to our clients, to help them achieve the best possible outcomes. Call Stuart Miller Solicitors for a consultation today.