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S3. Sexual assault

Date Updated: January 2012

Title: Sexual offences

Offence: Sexual assault

Legislation: Sexual Offences Act 2003 S3

Commencement Date: 01/05/2004

Mode of Trial: Either Way

Statutory Limitations & Maximum Penalty: On Indictment - 10 years imprisonment
On summary conviction - 6 months imprisonment or fine not exceeding statutory maximum

Culpability & Harm

All non-consensual offences involve the violation of the victim's sexual autonomy and will result in harm. The seriousness of the violation may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm caused in the first instance.

The extreme youth or old age of a victim should be an aggravating factor. In addition, in principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be. However, the youth and immaturity of the offender must also be taken into account in each case. All the non-consensual offences involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim's consent or without giving due consideration to whether the victim was able to or did, in fact, consent. The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence.

Aggravating & Mitigating Factors

It should be borne in mind these lists are non-exhaustive and the factors are not linked in any particular order. Where a factor is an ingredient of an offence or is used to identify a starting point, it cannot also be an aggravating factor and care will be necessary to avoid double counting. Since sexual offences often involve some form of violence as an essential element of the offence, this is included in the starting points. However, it will be an aggravating feature if harm was inflicted over and above that necessary to commit the offence.

Millberry and others (2003) Cr App R (S) 31 In the context of rape  established the principle that sentencers should adopt the same starting point for 'relationship rape' or 'acquaintance rape' as for 'stranger rape'. The Council has determined that the same principle should apply to all non-consensual sexual offences.

Aggravating

  • Offender ejaculated or caused victim to ejaculate
  • Background of intimidation or coercion
  • Use of drugs, alcohol or other substance to facilitate the offence
  • Threats to prevent victim reporting the incident
  • Abduction or detention
  • Offender aware that he or she is suffering from a sexually transmitted infection
  • Physical harm caused
  • Prolonged activity or contact

Mitigating

Where the victim is aged 16 or over

  • Victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence

Where the victim is under 16

  • Sexual activity between two children (one of whom is the offender) was mutually agreed and experimental
  • Reasonable belief (by a young offender) that the victim was aged 16 or over
  • Youth and immaturity of the offender
  • Minimal or fleeting contact

Relevant Sentencing Council Guideline (if any)

  1. Guidelines effective for offences sentenced on or after the 14th May 2007.
  2. The starting points are for an adult offender, of previous good character who was convicted after trial.

Type/nature of activity: Contact between naked genitalia of offender and naked genitalia, face or mouth of the victim 

  • Starting points: 5 years custody if the victim is under 13
    Sentencing ranges: 4 - 8 years custody
  • Starting points: 3 years custody if the victim is aged 13 or over 
    Sentencing ranges: 2 - 5 years custody

Type/nature of activity: Contact between naked genitalia of offender and another part of victim's body
Contact with genitalia of victim by offender using part of his or her body other than the genitalia, or an object
Contact between either the clothed genitalia of offender and naked genitalia of victim or naked genitalia of offender and clothed genitalia of victim 

  • Starting points: 2 years custody if the victim is under 13
    Sentencing ranges: 1 - 4 years custody
  • Starting points: 12 months custody if the victim is aged 13 or over 
    Sentencing ranges: 26 weeks - 2 years custody

Type/nature of activity: Contact between part of offender's body (other than the genitalia) with part of the victim's body (other than the genitalia) 

Starting points: 26 weeks custody if the victim is under 13
Sentencing ranges: 4 weeks - 18 months custody

Starting points: Community order if the victim is aged 13 or over 
Sentencing ranges: An appropriate non-custodial sentence

'Non-custodial sentence' in this context suggests a community order or a fine. In most instances, an offence will have crossed the threshold for a community order. However, in accordance with normal sentencing practice, a court is not precluded from imposing a financial penalty where that is determined to be the appropriate sentence.

Relevant Sentencing Case Law

Att-Gen's Ref no 26 of 2009 EWCA Crim 1393 The CA noted that in applying the  Definitive Guidelines there is a difficulty in that individual cases may not slot easily into any particular category and guideline. Injustice can occur if the Definitive Guidelines, particularly on sexual offences, are applied too rigidly. The list of aggravating features in the guidelines is not meant to be exhaustive. Referring to the guidelines they noted "The Council makes plain that broadly there are four dimensions to consider when assessing the gravity of a sexual offence. They are (in no particular order): the degree of harm to the victim, the need to deter others from acting in similar fashion, the level of risk posed by the offender to society, and the level of culpability of the offender. The Definitive Guideline makes plain that an offender's culpability is high where the sexual activity proved is in any way non-consensual, coercive or exploitative. This is because a sexual offence is inherently harmful and it is inherently harmful because of the psychological consequences."

Ancillary Orders:

  • Notification (S83 to 96 Sexual Offences Act 2003) if:
    • Offender under 18 and sentenced to 12 months or more imprisonment: or
    • Victim under 18; or
    • Offender over 18 and sentenced to term of imprisonment, detained in hospital or subject to Community Sentence of 12 months or more.
  • Where the notification requirements above are present there is a discretionary power to make a Sexual Offences Prevention Order (S104 Sexual offences Act 2004)
  • Where the defendant is aged 18 or over he or she is automatically barred from enaging in regulated activity with children and with vulnerable adults. (Safeguarding Vulnerable Groups Act 2006). 

Consider Also:

  • Dangerous Offender provisions apply. Sentences for public protection must be considered in all cases of sexual assault.

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