Causing a person to engage in sexual activity without consent

(1) A person (A) commits an offence if—

(a) he intentionally causes another person (B) to engage in an activity,

(b) the activity is sexual,

(c) B does not consent to engaging in the activity, 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, if the activity caused involved—

(a) penetration of B’s anus or vagina,

(b) penetration of B’s mouth with a person’s penis,

(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or

(d) penetration of a person’s mouth with B’s penis,

is liable, on conviction on indictment, to imprisonment for life.

(5) Unless subsection (4) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

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.

Key points:

The offence can be committed by words alone, for example, defendant makes his victim carry out a sexual act, such as masturbation, that only involves the victim

This offence covers situations where, for example, a complainant is forced

to carry out a sexual act involving their own person, such as masturbation, or

to engage in sexual activity with a third party, who may be willing or not, or

to engage in sexual activity with the offender, for example, woman forces a man to penetrate her

This section creates two separate offences, penetrative and non-penetrative.

The mode of trial and maximum sentence varies depending on whether there is penetration

The non-penetrative offence is either way and attracts a maximum 10 year sentence on indictment

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

Charging practice:

The prosecutor should specify either that the sexual activity is penetrative or non-penetrative when selecting and drafting charges under this section

One of the purposes of this offence, in addition to the wider range of sexual activity, is to create a female equivalent of the offence of rape, which carries the same level of punishment for what amounts to the same type of offending behaviour. Please refer to the chapter on Issues relevant to particular groups of people

If the complainant is under 13 years then the offence should be charged under section 8 Sexual Offences Act 2003. If the complainant is 13 to 15 and there is no consent the offence should be charged under section 4 Sexual offences Act 2003

If the suspect is 18 or over and in a position of trust to the complainant and the complainant is aged 16 or 17 the offence should be charged under section 17 Sexual Offences 2003

In determining seriousness reference should be made to the sentencing guidelines.

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.