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Sexual assault by penetration

Date Updated: January 2012

Title: Sexual offences

Offence: Sexual assault by penetration

Legislation: Sexual Offences Act 2003 S2

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.

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

  • 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

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
  • 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 if the victim is under 13
    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: Penetration with an object - in general, the larger or more dangerous the object, the higher the sentence should be 

  • Starting points: 7 years custody if the victim is under 13
    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: Penetration with a body part (fingers, toes or tongue) where no physical harm is sustained by the victim 

  • Starting points: 5 years custody if the victim is under 13
    Sentencing ranges: 4 - 8 years custody
  • Starting points: 4 years custody if the victim is 13 or over but under 16
    Sentencing ranges: 3 - 7 years custody
  • Starting points: 2 years custody if the victim is 16 or over 
    Sentencing ranges: 1 - 4 years custody

Relevant Sentencing Case Law

AGs Reference No. 104 0f 2004 (Wayne Garvey) [2005] 1 Cr.App.R.(S.) 117

R v Z (2009) EWCA Crim 1821. V was staying at boyfriends address D also lived there. While V was asleep in bed and boyfriend was out of room D entered and digitally penetrated her anus 3 times in quick succession. She woke and he left. D 21 year old Italian national who had lost his job as a result. Held while it was opportunistic there was penetration on three occasions. Whether or not it was through her clothing was not a major consideration. 27 months after trial upheld.

R v P (LD) (2010) EWCA Crim 164. (Dyson LJ , Swift J , Sweeney J ; Case No: 092460 C3; Date: 13/01/2010 Restrictions: Identification Restrictions).  Defendant was convicted of assault by penetration and ABH. He followed V who was in drink as she walked home before attacking her and digitally penetrating her, when she resisted she was punched to the face. D was effectively of good character.  Held: The offence was premeditated, he stalked her for three quarters of a mile, she was alone and vulnerable, the violence was more than necessary to commit the offence and V was caused considerable distress. Starting point was 4 years. Taking account of the aggravating and mitigating factors 6 years was appropriate.

Ancillary Orders:

  • Notification (S83 to 96 Sexual Offences Act 2003)
  • The previous power to disqualify from working with children (S26 Criminal Justice & Court Services Act 2000) has been repealed. Under the Safeguarding Vulnerable Groups Act 2006 an offender convicted of assault by penetration is automatically included on 'the childrens barred list' and the 'adults barred list'. No order of the court is required.
  • Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)

Consider Also:

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

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