Assault by penetration is one of the most serious sexual offences under UK law, and is governed by the Sexual Offences Act 2003. In this article I will look to provide a technically detailed layman’s guide to the offence.

What is Assault by penetration?

Under Section 2 of the Sexual Offences Act 2003, a person commits the offence of assault by penetration if:

• They intentionally penetrates the vagina or anus of another person with any part of their body or an object.
• The penetration is sexual
• The other person does not consent to the penetration.
• They do not reasonably believe that the other person consents.

This offence is distinct from rape, as it does not require penetration to be with a penis. Instead, it covers any form of non-consensual sexual penetration, making it a broader category of serious sexual crime.

What are the Key Elements of the Offence of assault by Penetration? 

For an act to be classified as assault by penetration, the prosecution must prove the following ‘elements’ of the offence so that a Court is sure beyond reasonable doubt. It is worth noting that the prosecution must prove every single one of these elements, if they fail to prove a single element to the requisite standard then the case fails and the defendant is entitled to a not guilty verdict. The elements of the offence are:

Intentional Penetration

The penetration must be deliberate and not accidental. The case of R v Heard [2007] EWCA Crim 125 established that self-induced intoxication (i.e. being drunk or high on drugs) is not a valid defence if intent was present.

The Act Must Be Sexual

The act must be considered sexual in nature, as defined under Section 78 of the Sexual Offences Act 2003. Courts apply a two-stage test from H [2005] EWCA Crim 732 to determine if an act is sexual:

• Would a reasonable person consider the act sexual based on its nature?
• Was the act sexual due to its circumstances or intent?

The question of whether an act is sexual or not can be very technically complicated and there is a vast amount of case law on the subject, if this is an issue in your case then it is important to gain specialist legal advice. 

Lack of Consent

Consent is defined under Section 74 of the Sexual Offences Act 2003 as an individual’s free agreement to the act. If the victim is coerced, unconscious, or unable to communicate consent, the act is considered non-consensual.

Consent must be actively given and can be withdrawn at any point. A lack of resistance does not imply consent, and factors such as coercion, threats, or intoxication can negate it. The law also recognises the individuals under certain circumstances- such as those with severe mental disabilities, or those who are asleep- may be unable to provide valid consent.

Absence of Reasonable Belief in Consent

A defendant cannot claim mistaken belief in consent unless they had taken reasonable steps to ascertain it. In Abdulahi [2022] EWCA Crim 412, the court confirmed that an honest but unreasonable belief in consent does not provide a defence.

Sentencing and Penalties

The offence of assault by penetration carries a maximum sentence of life imprisonment.

Sentences are determined based on Sentencing Council guidelines, which consider factors such as the use of force, victim impact, and premeditation.

The Assaults on Emergency Workers (Offences) Act 2018 introduced harsher penalties when the offence is committed against an emergency worker.

Defences to the offence of Assault by Penetration

I have found that every different case involves a different defence and no two cases are the same. Different factual scenarios can give rise to different defences and sometimes one or more defence can be employed at any given time. The law is complicated in this area and it is advisable to seek specialist legal advice as to what defence may be available to you if you are accused of this crime. However, generally speaking, defences may include:

• Mistaken identity: The defendant was not the person who allegedly committed the offence
• Fabrication: The complainant has completely made-up the incident, or aspects of the incident
• Genuine consent: If the complainant consented freely then no offence has taken place
• Lack of penetration: If penetration did not occur, the offence does not apply
• Mistaken belief in consent: If the belief was reasonable given the circumstances

Quentin’s Final Thoughts

Assault by penetration is one of the most severe sexual offences in the UK, carrying life-changing consequences for both the victim and the accused. Understanding its legal framework is crucial for anyone involved accused of such an offence. The concepts and legal principles outlined above are complicated and I've done my best to summarise them in a form that I hope is accessible to members of the public however, if you are accused of such an offence it may pay worth seeking professional guidance from a lawyer who is experienced in these areas as the application of factual scenarios to the law can be complicated.

Quentin Hunt is a specialist criminal defence barrister who has been defending cases of assault by penetration for over 25 years, he is recognised as being an expert in the area. He accepts instructions both through solicitors and directly from members of the public. He not only defends cases in court but is also adept at taking cases on at the pre charge stage to persuade police and CPS not to pursue potential prosecutions. If you are accused of this or any other sexual offence you may contact Quentin for a free, no obligation discussion about how he may assist in your case.

Links: 

Sexual Offences Act 2003
Sentencing Council Guidelines