Assault by penetration
The offence of assault by penetration under s.2 Sexual Offences Act 2003 — the statutory elements (points to prove) reproduced verbatim, mode of trial and maximum sentence, and the arrest power, for frontline officers.
Unofficial independent resource — always verify with official sources (College of Policing, your force, PFEW).
Reviewed by BlueLineHub Editorial
What are the points to prove for assault by penetration under s.2 Sexual Offences Act 2003?
Assault by penetration (s.2 Sexual Offences Act 2003) requires: (1) intentional penetration of the vagina or anus of another person with a part of the body or anything else, (2) the penetration is sexual (s.78), (3) that person does not consent (s.74), and (4) the defendant does not reasonably believe in consent, reproduced verbatim below.
Assault by penetration is indictable only, with a maximum sentence of life imprisonment (s.2(4) Sexual Offences Act 2003).
Assault by penetration is defined by s.2 Sexual Offences Act 2003: intentional penetration of the vagina or anus of another person with a part of the body or anything else, where the penetration is sexual, that person does not consent, and the defendant does not reasonably believe in consent. The offence, the definition of consent (s.74) and the meaning of "sexual" (s.78) are reproduced verbatim below. It is educational reference, not a charging decision — verify against current law, CPS charging guidance and force policy.
Offence
s.2 Sexual Offences Act 2003
Mode of trial
Indictable only
Maximum sentence
Life imprisonment (s.2(4) Sexual Offences Act 2003)
Points to prove — statutory elements
Reproduced verbatim from the Act as published on legislation.gov.uk. These are the statutory elements, not a paraphrase — confirm the up-to-date text and any amendments at the source.
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
For the purposes of this Part (except sections 15A , 66B to 66D and 71 ), penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
Powers of arrest & search
A constable may arrest without warrant anyone whom they have reasonable grounds to suspect of committing assault by penetration, where an arrest is necessary on one of the s.24(5) grounds (PACE 1984 s.24). There is no separate statutory stop/search power for this offence.
Code of Practice: PACE Code G — arrest →CPS charging guidance
Verbatim extracts from the CPS charging guidance (Crown copyright, reproduced under the Open Government Licence v3.0). CPS revises this guidance — confirm against the live page and current law.
Key points:
There must be penetration of the vagina or anus but not the mouth.
Penetration can be with any part of the body (for example, finger, tongue, toe) or by anything else (for example, bottle).
This offence should be charged where, by virtue of the fact that the complainant is unsure if penetration was by a penis or something else, there is insufficient evidence to charge rape.
Assault by penetration is an indictable only offence and carries a maximum of life imprisonment.
The definition of sexual is contained within section 78 of the Sexual Offences Act 2003 and applies to all offences in part 1 of the Act, with the exception of section 71 (sexual activity in a public lavatory).
Penetration, touching or any other activity is sexual if a reasonable person would consider that:
whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
In deciding whether an activity is sexual look first at the nature of the activity. If the activity is by its nature sexual (for example, sexual intercourse, masturbation) then it is sexual for the purposes of the legislation.
Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.
Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.
Touching of clothing might be sexual as in the case of R v H [2005] EWCA Crim 732.
- Rape (s.1 Sexual Offences Act 2003) requires penile penetration of the vagina, anus or mouth. Assault by penetration (s.2) covers penetration of the vagina or anus by any other part of the body or with an object, and additionally requires the penetration to be sexual (s.78) — an element rape does not carry.
- Sections 75 and 76 Sexual Offences Act 2003 set out evidential and conclusive presumptions about consent that apply to this offence (and to ss.1, 3 and 4) in specified circumstances (e.g. violence, deception as to the nature or purpose of the act) — they are not reproduced as points to prove here but are relevant to how consent is proved or presumed.
- Penetration is a continuing act from entry to withdrawal (s.79(2) Sexual Offences Act 2003) — consent, or the withdrawal of consent, during that continuing act is relevant to whether the offence is committed.
- A conviction for assault by penetration triggers the notification requirements ('sex offender registration') under Part 2 Sexual Offences Act 2003, with the notification period set by the Sentencing Act 2020.
Related reading
Primary sources
BlueLineHub is independent and unofficial. Always verify with the authoritative source below.
- Verify on official source
Sexual Offences Act 2003, section 2 — assault by penetration
The offence of assault by penetration: intentional sexual penetration of the vagina or anus of another with a part of the body or anything else, without consent and without reasonable belief in consent, and the maximum sentence of life imprisonment (s.2(4)).
Last checked: August 2026 - Verify on official source
Sexual Offences Act 2003, section 74 — 'consent'
The statutory definition of consent applied by s.2(1)(c).
Last checked: August 2026 - Verify on official source
Sexual Offences Act 2003, section 75 — evidential presumptions about consent
Circumstances (e.g. violence, unlawful detention) in which the complainant is presumed not to have consented and the defendant is presumed not to have reasonably believed in consent, unless sufficient evidence is raised to the contrary.
Last checked: August 2026 - Verify on official source
Sexual Offences Act 2003, section 76 — conclusive presumptions about consent
Circumstances (deception as to the nature or purpose of the act, or impersonation of a person known personally to the complainant) in which consent and reasonable belief in consent are conclusively presumed absent.
Last checked: August 2026 - Verify on official source
Sexual Offences Act 2003, section 78 — meaning of 'sexual'
The statutory meaning of 'sexual' applied by s.2(1)(b).
Last checked: August 2026 - Verify on official source
Police and Criminal Evidence Act 1984, section 24 — arrest without warrant: constables
The power of arrest without warrant, subject to the necessity criteria in s.24(5).
Last checked: August 2026 - Verify on official source
Sentencing Council — Assault by penetration guideline
The Sentencing Council guideline used to assess sentence within the statutory maximum of life imprisonment.
Last checked: August 2026 - Verify on official source
CPS Rape and Sexual Offences prosecution guidance — Chapter 8: Key Legislation and Offences (Open Government Licence v3.0)
CPS charging guidance for Sexual Offences Act 2003 offences — the verbatim extracts shown on this card.
Last checked: October 2026
Frequently asked
- What are the elements of assault by penetration?
- Intentional penetration of the vagina or anus of another person with a part of the body or anything else (s.2(1)(a)); the penetration is sexual (s.2(1)(b), applying the s.78 meaning of 'sexual'); that person does not consent (s.2(1)(c), applying the s.74 definition of consent); and the defendant does not reasonably believe in consent (s.2(1)(d)).
- Is assault by penetration triable either way?
- No. Assault by penetration is indictable only, with a maximum sentence of life imprisonment (s.2(4) Sexual Offences Act 2003).
- What is the difference between rape and assault by penetration?
- Rape (s.1) requires penetration by the penis. Assault by penetration (s.2) covers penetration of the vagina or anus by any other part of the body or with an object, and requires the penetration to be sexual — an element rape does not carry.