A person commits an offence by intentionally touching another person sexually, without consent and without a reasonable belief the person consented.
|Offence Nature||Starting Point||Range|
|Sexual touching without aggravating features||26 weeks’ custody||Medium Level CommunityOrder- 1 years’ custody|
|Sexual touching with aggravating features (e.g. naked genitalia, sustained incident, vulnerability etc…)||2 years’ custody||High Level Community Order – 4 years’ custody|
|Sexual touching involving severe psychological or physical harm & violence||4 years||2 – 7 years custody|
* please note that cases involving children are far more serious and will result in more severe penalties than can be seen above
How we can help
For many years there has been criticism of the police and Crown Prosecution Service (CPS) for very low conviction rates in relation to the overall number of alleged sexual assaults. In recent years, possibly through public and media pressure placed upon the government, the law has developed to a stage where the emphasis is now placed on protecting the rights of victims, known as complainants, more than those accused of such crimes. Now, as can be seen from various media and police campaigns, people who believe they are the victim of an assault are actively encouraged to come forward and report the attack.
The police are often criticised for taking a one sided view from the outset. The assumption made by police investigators is that the complainant must be telling the truth and, consequently, the accused person must be guilty.
It is now more important than ever that the rights of those accused of sexual offences are safeguarded and the overriding principles of a fair trial and the presumption of innocence are upheld by the courts.
The law detailing all sexual offences is contained in the Sexual Offences Act 2003. Section 3 sets out the law relating to sexual assault. In summary, an offence is committed if a person touches another person sexually and without consent. The touching can even be committed through clothes. There does not need to be any violence for a offence to occur.
Accidental touching is not an offence – even if drunk.
The question of consent is a key issue in determining whether a sexual offence took place. The prosecution must prove that the complainant did not consent. Of course it is likely that a complainant will claim that consent was not given. It is also likely that the accused will claim consent was given. Investigations can be very difficult to prove or disprove. An offence will not have been committed where the complainant consented (but the complainant must have been old enough to have consented).
Even where the complainant did not consent, a person accused of a sexual assault can raise a defence of ‘reasonable belief’ that the complainant did consent. The accused must have had a reasonable belief that the complainant consented. In deciding whether the defendant did have a reasonable belief, the jury will consider all the circumstances of the case, including what steps were taken by the defendant to find out if the other person consented. The main point for jury to consider is whether the person freely agreed.
Whether a belief that the consent was given is reasonable is determined objectively and according to all the circumstances of the case, raising evidential issues for both the prosecution and defence. Having a skilled legal team on your side can make a huge difference to this crucial aspect of the case.
If the complainant was threatened, drugged, unconscious or incapable of communicating because of a disability, the law will assume (as a starting point) that there was no consent. It will then be the responsibility of the defendant to prove consent. This places a burden on the defence to show evidence of consent or their belief in consent.
The Police Interview
If you are accused of Sexual Assault the police will want to interview. Many convictions for sexual offences are based on an admission that the offence was committed. If the police don't have sufficient evidence to prove a sexual offence but you admit to it, you will likely be convicted. It is for this reason that the police interview stage is crucial.
You must first decide whether to have a solicitor present. Please do not refuse legal advice on the basis that you are innocent. This is a mistake. Whether innocent or not, the interview process is designed to catch you out. The police will use different interrogation techniques to twist words, create confusion and discredit your account. The police may also hold evidence back until questioning begins. It is not the truth that interests the police, but a conviction.
There are also different options in interview. You may decide to speak openly or, alternatively, stay quiet and say nothing. Your solicitor should advise you on all options.
If you have already been interviewed by the police, please contact us immediately. We may want to arrange a second interview quickly in order to restore any damage caused. We may even want to contact the CPS to explain why charges should not be laid.
Historic allegations of sexual assault
Remember, a different definition of consent will apply to sexual offence allegations said to have been committed prior to May 2004 – before the Sexual Offences Act 2004 was introduced. Before this date the Sexual Offences Act 1956 will apply. Under the old law the accused will not be convicted if he honestly, and subjectively, believed the complainant consented. Note that under the old law the defendant had to have believed, subjectively (his personal belief), that the complainant consented. Under the new law it is the role of the jury to assess, on an objective basis, whether it was reasonable for the defendant to believe the other person consented. In other words, it is irrelevant whether or not the defendant believed the complainant consented – the issue is whether the jury believes the defendant. As noted above, presenting evidence in the correct way to the jury, by an experienced and senior barrister, is crucial to the success of any defence.
With a historic sexual offence case a particular difficulty is a lack of evidence. It is likely to be the complainant’s word against the defendant’s. Although the defendant is presumed to be innocent (the so called ‘presumption of innocence’), it often feel like the other way around.
We only instruct senior, experienced barristers to represent you in court, often using Queens Counsel (the most senior barristers) to defend you. We are also one of the few law firms that will involve senior barristers from the start of your case.
- The vulnerability of the victim
- The age difference
- The number of incidents
- The severity of the assault
- The effect on the victim and whether the defendant was in a position of trust
If you would like to know more about this offence, or how we can help, please contact us. Our specialist sexual offence solicitors will be available to speak in confidence about your case - completely free of charge.