S6. Assault of a child under 13 by penetration
Date Updated: January 2012
Title: Sexual offences
Offence: Assault of child under 13 by penetration
Legislation: Sexual Offences Act 2003 S6
Commencement Date: 01/05/2004
Mode of Trial: Indictable only
Statutory Limitations & Maximum Penalty: Life imprisonment
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.
"...the purpose of the legislation is to protect children under 13 from themselves, as well as from others mided to prey on them." (per Rose LJ in R v Corran and others [2005] 2 Cr.App.R.(S) 73).
Aggravating and 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.
Aggravating
- 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 arising from the penetration
- Offender ejaculated or caused the victim to ejaculate
Mitigating
- 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
- Penetration is minimal or for a short duration
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.
Type/nature of activity: Penetration with an object or body part, accompanied by any one of the following: abduction or detention; 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
Sentencing ranges: 11 - 17 years custody
Type/nature of activity: Penetration with an object - in general, the larger or more dangerous the object, the higher the sentence should be
- Starting points: 7 years custody
Sentencing ranges: 5 - 10 years custody
Type/nature of activity: Penetration with a body part (fingers, toes or tongue) where no physical harm is sustained by the victim
- Starting points: 5 years Custody
Sentencing ranges: 4 - 8 years custody
Relevant Sentencing Case Law
R v Corran and others [2005] 2 Cr.App.R.(S) 73 - useful genral guidance on young victims.
R v Lee(2007) 1 Cr App R (S) 631 12 months custody for D aged 20 with no relevant convictions. Victim was 12. Held: Penetration with a finger is less culpable than penile penetration. A short period of custody should be sufficient where the other party consents.
Ancillary Orders:
- Notification (S83 to 96 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).
- Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
