Sexual assault

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

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, 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—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or 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:

Touching is widely defined and includes touching another person with any part of the body, or with anything else. Touching can be through clothing. In R v H (Karl Anthony) [2005] EWHA Crim 732 the Court of Appeal held that the touching of an individual’s clothing was sufficient to amount to ‘touching’ for the purposes of section 3.

Touching includes touching amounting to penetration, for example, kissing. Where there is sufficient evidence, penile penetration of the vagina, anus or mouth should be charged as rape and penetration of the vagina or anus with any part of a person’s body or other object should be charged as assault by penetration.

Sexual assault is an either way offence and attracts a maximum 10 year sentence on indictment.

Charging practice:

If touching does not occur, then consider an attempt.

Various activities previously covered by the offence of ‘indecent assault’ now fall within the definitions of offences under the 2003 Act (for example, assault by penetration, child sex offences and vulnerable adults subjected to a sexual assault). This means that the offence of sexual assault (section 3) will largely now be used in relation to lesser forms of sexual assault, than previously.

The exact nature of the sexual touching involved will be a key factor in assessing the seriousness of the offence. Prosecutors should refer to the harm and culpability factors and the aggravating and mitigating factors set out in the Sentencing Council's Sexual Offences (“sentencing guidelines”) when considering seriousness and the appropriate sentencing category for the offending.

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.