S4. Causing sexual activity
Date Updated: January 2012
Title: Sexual offences
Offence: Causing sexual activity without consent
Legislation: Sexual Offences Act 2003 S4
Commencement Date: 01/05/2004
Mode of Trial: Penetration - Indictable only
Non-Penetration - Either Way
Statutory Limitations & Maximum Penalty: Penetration - Life Imprisonment
Non-Penetration - On Indictment -10 years imprisonment; Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability and 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
Aggravating
- Offender ejaculated or caused victim to ejaculate
- History 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
Mitigating
- Early guilty plea
Relevant Sentencing Council Guideline (if any)
- Guidelines effective for offences sentenced on or after the 14th May 2007.
- The starting points are for an adult offender, of previous good character who was convicted after trial.
The guidelines emphasise:
- The starting point should be the same whether an offender causes an act to take place or incites an act which does not take place.
- A reduction will generally be appropriate where the incited activity does not take place.
- Where an offender voluntarily desists from any action taken to incite a sexual act, or personally and of their own volition intervenes to prevent a sexual act from taking place, this will be an additional mitigating factor.
- Whether or not the sexual activity takes place, the degree of harm done to the victim will be a material consideration when considering the sentence.
The starting points for sentencing for sexual activity that is caused or incited by the offender without the consent of the victim(s) should mirror those for similar activity perpetrated within the offences of 'rape', 'assault by penetration' and 'sexual assault'.
Type/nature of activity: Penetration with any one of the following aggravating factors: abduction or detention; offender aware that he or she is suffering from a sexually transmitted infection; more than one offender acting together; abuse of trust; offence motivated by prejudice (race, religion, sexual orientation, physical disability); sustained attack
- Starting points: 13 years custody if the victim is a child under 13 or a person with a mental disorder
Sentencing ranges: 11 - 17 years custody - Starting points: 10 years custody if the victim is 13 or over but under 16
Sentencing ranges: 8 - 13 years custody - Starting points: 8 years custody if the victim is 16 or over
Sentencing ranges: 6 - 11 years custody
Type/nature of activity: Single offence of penetration of/by single offender with no aggravating or mitigating factors
- Starting points: 7 years custody if the victim is a child under 13 or a person with a mental disorder
Sentencing ranges: 5 - 10 years custody - Starting points: 5 years custody if the victim is 13 or over but under 16
Sentencing ranges: 4 - 8 years custody - Starting points: 3 years custody if the victim is 16 or over
Sentencing ranges: 2 - 5 years custody
Type/nature of activity: Contact between naked genitalia of offender and naked genitalia of victim, or causing two or more victims to engage in such activity with each other, or causing victim to masturbate him/herself
- Starting points: 5 years custody if the victim is a child under 13 or a person with a mental disorder
Sentencing ranges: 4 - 8 years custody - Starting points: 3 years custody
Sentencing ranges: 2 - 5 years custody
Type/nature of activity: Contact between naked genitalia of offender and another part of victim's body, or causing two or more victims to engage in such activity with each other
Contact with naked genitalia of victim by offender using part of the body other than the genitalia or an object, or causing two or more victims to engage in such activity with each other
Contact between either the clothed genitalia of offender and naked genitalia of victim, between naked genitalia of offender and clothed genitalia of victim, or causing two or more victims to engage in such activity with each other
- Starting points: 2 years custody if the victim is a child under 13 or a person with a mental disorder
Sentencing ranges: 1 - 4 years custody - Starting points: 12 months custody
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 victim's body (other than the genitalia)
- Starting points: 26 weeks custody if the victim is a child under 13 or a person with a mental disorder
Sentencing ranges: 4 weeks - 18 months custody - Starting points: Community order
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
R v H and R 2008 EWCA Crim 1202. Where two defendants forced their teenage victim to engage in sexual activity with an animal and filmed it the CA referred to it as rape or rape equivalent. Held a sentence of seven years was not manifestly excessive.
Ancillary Orders:
- Notification (S83 to 96 Sexual Offences Act 2003)
- Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
- Where the defendant is aged 18 or over he or she is automatically barred from engaging 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.
