What are the three elements of assault of a child under 13 by penetration?

Intentional penetration of the vagina or anus of another with a part of the body or anything else (s.6(1)(a)); the penetration is sexual, applying the s.78 definition (s.6(1)(b)); and that other person is under 13 (s.6(1)(c)).

Is consent relevant to this offence?

No. Consent is not an element of this offence and s.74 does not apply. There is also no defence of reasonably believing the child was 13 or over — liability as to the child's age is strict (R v G [2008] UKHL 37).

Assault of a child under 13 by penetration

The offence of assault of a child under 13 by penetration under s.6 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 the BlueLineHub Editorial Team

Last reviewed: 28 August 2026 · Next review due: 28 February 2027

Reviewed by BlueLineHub Editorial

What are the points to prove for assault of a child under 13 by penetration under s.6 Sexual Offences Act 2003?

Assault of a child under 13 by penetration (s.6 Sexual Offences Act 2003) requires: (1) intentional penetration of the vagina or anus of another with a part of the body or anything else, (2) the penetration is sexual (s.78), and (3) that other person is under 13, reproduced verbatim below.

The offence is indictable only, with a maximum sentence of life imprisonment (s.6(2) Sexual Offences Act 2003).

All offence cards

Assault of a child under 13 by penetration is defined by s.6 Sexual Offences Act 2003: intentional sexual penetration of the vagina or anus of a child under 13 with a part of the body or anything else. The offence and the definition 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.6 Sexual Offences Act 2003

Mode of trial

Indictable only

Maximum sentence

Life imprisonment (s.6(2) 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.

s.6 — Assault of a child under 13 by penetrationthe offence

(1) A person commits an offence if—

(a) he intentionally penetrates the vagina or anus of another person with a part of his body or anything else,

(b) the penetration is sexual, and

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Read s.6 on legislation.gov.uk

s.78 — “Sexual”"sexual"

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.

Read s.78 on legislation.gov.uk

Powers of arrest & search

Arrest without warrants.24

A constable may arrest without warrant anyone whom they have reasonable grounds to suspect of committing this offence, 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.

Offences against children under 13 (sections 5-8)ss.5-8 under-13 offences — strict liability as to age; consent irrelevant

s.5 rape

s.6 assault by penetration

s.7 sexual assault of a child under 13

s.8 causing or inciting sexual activity with a child

s.8(2) causing or inciting sexual activity with a child

Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.

In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing but only after consideration has been given to the impact on the child and the public interest in proceeding in this way. On no account should a count of rape (section 1) be added as an alternative. Juries should not be asked to deliberate upon issues that are critical to sentence which are not necessary to substantiate a charge in law. Rather these are questions that a judge should consider by hearing evidence on the relevant point and according to the procedure as set out in R v Newton 77 Cr. App. R. 13. See case of Delahaye-Bryan [2015] EWCA Crim 1987.

The section 5 offence is an indictable only offence and carries a maximum sentence of life imprisonment.

Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under 13 with a part of his body, or with anything else.

A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.

The section 6 offence is an indictable only offence and carries a maximum sentence of life imprisonment.

Section 7 makes it an offence for a person to touch a child under 13 sexually.

The section 7 offence is an either way offence and carries a maximum sentence of 14 years' imprisonment.

Section 8 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity.

Section 8 creates two offences to reflect causing or inciting 1) penetrative sexual activity and 2) non-penetrative sexual activity.

The offences cover the situation where sexual activity itself does not take place.

The non-penetrative offence is an either way offence and carries a maximum sentence of 14 years imprisonment.

The penetrative offence is an indictable only offence and carries a maximum sentence of life imprisonment.

A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.

Sections 5 - 8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant. If both the age of the child (that is, under 13) and the elements of the offence can be proved, then sections 5-8 should always be preferred to the main non-consensual offences.

These are offences of strict liability as to age. The prosecution has to prove only two facts.

first, the intentional sexual activity and

second, the age of the complainant at the date of the sexual activity, using, for example, a certified copy of a birth certificate together with evidence of identity.

There is no defence of mistaken reasonable belief in the age of the complainant.

The under-13 offences overlap to a very significant extent with the child sex offences which are designed to protect children under 16 (sections 9-15). However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect children in this age group. This is to ensure the availability of the higher maximum penalties for the under-13 offences and avoid children under 13 giving evidence in relation to consent.

If there is difficulty in proving that the child is under 13 (or was so at the time of the offending) then a charge under sections 9-12 should be considered rather than sections 5-8.

The intention behind the Sexual Offences Act 2003 is to provide maximum protection to very young children, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent.

Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity addressed by sections 5 - 8, a prosecution will normally be required unless there are public interest factors tending against prosecution, which outweigh those tending in favour.

Where the offender is under 18 prosecutors should refer to prosecution guidance on Children as suspects and defendants, and to the additional public interest considerations and factors which must be addressed when considering the prosecution of a youth for a sexual offence.

Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).

If the offence is penetrative, section 7 and section 8 become indictable only offences. Prosecutors must specify whether the sexual activity is penetrative or non-penetrative when drafting the indictment.

Where the offence is either way prosecutors should refer to the sentencing guidelines when assessing seriousness.

Read on cps.gov.uk

Sexual Offences Act 2003 - definition of ‘sexual’‘sexual’ defined (s.78)

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.

Read on cps.gov.uk

Assault of a child under 13 by penetration — Sentencing Council guideline Legislation Quick Reference

The CPS extract above says "If the offence is penetrative, section 7 and section 8 become indictable only offences". That penetrative to indictable-only split applies to s.8 (and ss.9-10), not to s.7: sexual assault of a child under 13 (s.7) is triable either way in every case (s.7(2)). This card's offence, assault of a child under 13 by penetration (s.6), is a distinct, indictable-only offence (maximum life). Follow the statute and verify against the current CPS guidance.
This offence covers non-penile sexual penetration of the vagina or anus of a child under 13 (with a part of the body or anything else); penile penetration of a child under 13 is charged as rape of a child under 13, s.5 Sexual Offences Act 2003.
Consent is not in issue for this offence — s.6 contains no consent element and s.74 is not applied. There is also no defence of reasonably believing the child was aged 13 or over: liability as to the child's age is strict (R v G [2008] UKHL 37, case-law).
A conviction triggers the notification requirements ('sex offender registration') under Part 2 Sexual Offences Act 2003, with the notification period set by the Sentencing Act 2020.

Frequently asked

What are the three elements of assault of a child under 13 by penetration?: Intentional penetration of the vagina or anus of another with a part of the body or anything else (s.6(1)(a)); the penetration is sexual, applying the s.78 definition (s.6(1)(b)); and that other person is under 13 (s.6(1)(c)).
Is consent relevant to this offence?: No. Consent is not an element of this offence and s.74 does not apply. There is also no defence of reasonably believing the child was 13 or over — liability as to the child's age is strict (R v G [2008] UKHL 37).
Is assault of a child under 13 by penetration triable either way?: No. It is indictable only, with a maximum sentence of life imprisonment (s.6(2) Sexual Offences Act 2003).