Sexual assault

It is an offence for an individual to intentionally touch another person sexually, without that person’s consent, under section 3 of the Sexual Offences Act 2003. Any form of sexual contact against the will of the victim is regarded as sexual abuse.

Examples of sexual assault include inappropriate touching, rape, penetration, underage sexual activity, and so on. A defendant who is accused of serious sexual offences, such as rape, may be accused and convicted of one or more counts of sexual assault.

When a defendant is found guilty of sexual assault, the maximum penalty is 10 years’ imprisonment.

Under the Sexual Offences Act 2003, it is illegal for a male to penetrate the vagina, anus or mouth of a male or female with his penis without prior consent. The offence of rape can take place within a marriage so, for example, a husband cannot defend a charge or rape on the basis that he is married to the complainant.

Rape is a serious offence to which the dangerous offender provisions apply. This means on conviction of rape, the defendant can be sentenced to a maximum of life imprisonment (the starting point is five years).

Assault by penetration is a serious sexual assault under the 2003 Act. This means that it is an offence for anyone to penetrate the vagina or anus of another person without their consent. Penetration can take place by use of a part of the body, eg. fingers, or anything that is not a body part that is used for the purpose of penetration (with sexual intent).

To successfully defend a charge of sexual assault on the basis of consent, it must be proved that consent (ie. permission) was given, or that the accused believed the other party had consented. Someone consents to penetration only if they agree by choice to it – and have the freedom and capacity to make that choice. Even if consent is given, it can be withdrawn at any time.

Where consent is in dispute, the court will consider the context in which the alleged offence took place, for instance:

• the complainant’s age, maturity and understanding;
• whether the complainant knew or understood the position they were in and what they were being asked to do;
• the history of the relationship between the complainant and suspect;
• position of power over the complainant; and, especially for younger and/or vulnerable victims;
• any other evidence of exploitation or grooming so that s/he may not understand the full significance of what they are doing.

The courts will also consider whether the complainant was vulnerable: for example, whether they suffered domestic violence and were free to consent; whether they had capacity to consent (ie. were they under the influence of drugs or alcohol, asleep at the time, or under a mental incapacity).

A sexual offence will be treated as an aggravated offence, and therefore will be punished more severely, if any of the following aggravating factors are present:

• Abduction or detention;
• The offender is aware they are suffering from a sexually transmitted infection;
• More than one offender acted together;
• Abuse of trust;
• Offence motivated by prejudice;
• Sustained attack;
• Pregnancy or infection results;
• Offender ejaculated or caused victim to ejaculate;
• Background of intimidation or coercion;
• Use of drugs, alcohol or another substance to facilitate the offence;
• Taking photographs of the victim.

Victims of sexual assault should ideally consent to a forensic examination as soon as possible. At such a traumatic time, many will not want to submit to what can be considered an ‘intrusive’ examination; however, it is important to collect evidence against the alleged perpetrator for use in criminal court proceedings. These examinations are carried out by appropriately trained doctors or nurses in a sexual assault referral centre or specially designated police suite. Samples will be taken such as hair, bodily fluids and swabs from anywhere on the body contacted during a sexual assault.