Section 2 of the Sexual Offences Act 2003 defines the offence of assault by penetration as:
(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Who Can Be Prosecuted?
The difference between this offence and a Section 1 offence of Rape is that the penetration does not have to be with the penis, therefore the offence can be committed by a woman.
How Is The Offence Interpreted?
There is no offence if the penetration is of the mouth; it only applies to the vagina or anus but can be by a body part or anything else, such as an object.
There is an added requirement for the penetration to be sexual. “Sexual” is defined in the Act as being established:
‘if a reasonable person would consider that –
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.’
Therefore, having consideration to all the facts of the case and the circumstances of the penetration, the jury will have to decide whether it was sexual.
The Court Procedure
Assault by penetration is an indictable only offence, which means that it will be dealt with in the Crown Court before a jury.
The maximum sentence for assault by penetration is life imprisonment.
Defending A Rape Allegation
As for the offence of rape, it is likely that the same kind of considerations will be given when defending an allegation of assault by penetration such as:
- Forensic evidence
- Phone evidence, including texts communications
- Social media
- Witness evidence
- Background behaviour, before and after the incident.
- Third party records, such as Social Services
Who Can I Contact For Advice & Help?
It is imperative that you instruct an experienced solicitor as soon as you are aware of an allegation being made.
Crucially, it is always important to have a solicitor present in interview at the police station, whether it is an interview by appointment or under arrest.