Does the child's apparent consent make a difference to rape of a child under 13?

No. Consent is not an element of s.5 Sexual Offences Act 2003 — the offence is committed by intentional penile penetration of a child under 13, whether or not the child appeared to agree.

Is it a defence to believe the child was 13 or over?

No. Age is strict liability for this offence — there is no defence of reasonably believing the child was 13 or over (R v G [2008] UKHL 37).

What if the penetration was not penile?

Non-penile penetration of a child under 13 (for example digital or object penetration) is charged under s.6 Sexual Offences Act 2003 (assault of a child under 13 by penetration), not s.5.

Rape of a child under 13

The offence of rape of a child under 13 under s.5 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 rape of a child under 13 under s.5 Sexual Offences Act 2003?

Rape of a child under 13 (s.5 Sexual Offences Act 2003) is committed where a person intentionally penetrates the vagina, anus or mouth of another person with his penis, and that other person is under 13, reproduced verbatim below.

It is indictable only, with a maximum sentence of life imprisonment (s.5(2) Sexual Offences Act 2003).

All offence cards

Rape of a child under 13 is an offence under s.5 Sexual Offences Act 2003: intentional penile penetration of the vagina, anus or mouth of a child under 13. The offence is reproduced verbatim below (s.5). It is educational reference, not a charging decision — verify against current law, CPS charging guidance and force policy.

Offence

s.5 Sexual Offences Act 2003

Mode of trial

Indictable only

Maximum sentence

Life imprisonment (s.5(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.5 — Rape of a child under 13the offence

(1) A person commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b) the other person is under 13.

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

Read s.5 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 rape of a child under 13, where an arrest is necessary on one of the s.24(5) grounds (PACE 1984 s.24). There is no other statutory arrest power specific to 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

Rape of a child under 13 — Sentencing Council guideline Legislation Quick Reference

Consent is not in issue for this offence — s.5 has no 'without consent' element, so it is committed irrespective of whether the child appeared to agree to the act.
Age is strict liability: there is no defence of reasonably believing the child was 13 or over (R v G [2008] UKHL 37).
Where the penetration is non-penile — for example digital or object penetration — against a child under 13, the relevant offence is s.6 Sexual Offences Act 2003 (assault of a child under 13 by penetration), not s.5.
A conviction for this offence triggers the notification requirements (the 'sex offenders register') under Part 2 Sexual Offences Act 2003.

Frequently asked

Does the child's apparent consent make a difference to rape of a child under 13?: No. Consent is not an element of s.5 Sexual Offences Act 2003 — the offence is committed by intentional penile penetration of a child under 13, whether or not the child appeared to agree.
Is it a defence to believe the child was 13 or over?: No. Age is strict liability for this offence — there is no defence of reasonably believing the child was 13 or over (R v G [2008] UKHL 37).
What if the penetration was not penile?: Non-penile penetration of a child under 13 (for example digital or object penetration) is charged under s.6 Sexual Offences Act 2003 (assault of a child under 13 by penetration), not s.5.