Indecent Assault (SOA 1956)
Code for Crown Prosecutors - Considerations
As a matter of law, a boy or girl under the age of 16 cannot consent to an act which would otherwise be an assault. However, if the victim did in fact consent, this would be relevant when considering the public interest in prosecuting.
The relevant factors include:
- Age of the defendant in relation to the victim;
- The emotional maturity of the victim and whether the sexual relationship was entered into willingly;
- The relationship between the parties and the existence, or otherwise, of any duty of care or breach of trust; <refer to Sexual Offences - Abuse of Trust, elsewhere in this guidance>
- Any element of seduction;
- Whether the victim encouraged the defendant in any way.
The Law
Definition of indecent assault
- On a woman: Section 14 Sexual Offences Act 1956 (Archbold, 20-144)
- On a man: Section 15 Sexual Offences Act 1956 (Archbold, 20-156)
Registration of sex offenders
Part 1 of the Sex Offenders Act 1997 applies, subject to exceptions (Archbold 20-271j)
Charging Practice
If there is any doubt about the circumstances of indecency, a separate charge for common assault should also be alleged, <refer to assault, below in this guidance>.
Averment of age in indictment
Although not essential for an offence under section 14(1) (Archbold 20-145) age is usually averred as a matter of practice where the girl is under 16. However, because of the change in sentencing powers, consideration must always be given to specifying the age of the girl in older cases (Archbold 20-147).
The age is usually averred in the particulars of the indictment where a male victim is under 16.
Specimen charges
For guidance <refer to Sexual Offences - Rape; Specimen Charges and Drafting the Indictment; Specimen Charges, both elsewhere in this guidance>.
Joinder
For guidance <refer to Sexual Offences - Rape; Joinder and Drafting the Indictment; Joinder both elsewhere in this guidance>.
Assault
See (Archbold, 20-151 and 20-162), and <Offences against the Person, elsewhere in this guidance>.
Evidence of previous acquittals
<refer to R v Z [2000] 2 AC 483 - evidence of previous acquittals and Sexual Offences - Rape, elsewhere in this guidance>.
Consent
A boy or girl under the age of 16 cannot consent in law, (Archbold, 20-152) and <refer to bona fide belief as to age of victim, below in this section>.
Bona fide belief as to age of victim
In R v K [2001] 3 W.L.R. 471, HL, it was held that a defendant was entitled to be acquitted where the victim was under 16 if the defendant held an honest belief that the complainant was 16 years or over. It was accepted that the belief did not have to be held on reasonable grounds. It is important to note, however, that whilst the belief did not need to be reasonable provided it was honest and genuine, the reasonableness or unreasonableness of the belief was not irrelevant. The more unreasonable the belief, the less likely it was to be accepted as genuine, (Archbold, 20-153).
The House of Lords also emphasised that nothing in the judgment had any bearing on a case in which the victim did not consent in fact. Section 14(2) provides that a girl under the age of 16 cannot in law give any consent. However, she may consent in fact. If it is shown that she did not consent, and that the defendant did not genuinely believe that she consented, any belief by the defendant concerning her age is irrelevant, since her age is relevant only to her capacity to consent.
Once the prosecution has proved that the victim was under 16, if the defence is raised that the defendant had a genuine belief that the complainant was 16 or older, the burden will be on the prosecution in the usual way to disprove that belief. It is likely to be clear from the police interview or from cross-examination of the complainant that this is the nature of the defence.
Although the offence before the House of Lords was indecent assault of a woman, the judgment applies equally to Section 15 of the 1956 Act (indecent assault on a man).
Character of victim - previous sexual history
Section 41 of the Youth Justice & Criminal Evidence Act 1999 apply to these offences. <refer to Sexual Offences - Rape; Character of Victim - previous sexual history and Sexual Offences - Rape; R v A - complainant's sexual history, elsewhere in this guidance>.
Useful links
<Sexual Offences - Abuse of Trust>
Archbold 20-144
Archbold 20-156
Archbold 20-271j
<Offences against the Person (Section 5) >
Archbold 20-145
Archbold 20-147
<Sexual Offences - Rape; specimen charges>
<Drafting the Indictment; specimen charges>
<Sexual Offences, Rape; Joinder>
<Drafting the Indictment; Joinder>
R v Z [2000] 2 AC 483
Archbold 20-152
R v K [2000] 3 WLR 471,HL
Archbold 20-153
<Sexual Offences - Rape; Character of Victim - Previous Sexual History>
<Sexual Offences - Rape; Complainant's Sexual History>
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