What is assault by penetration?

Assault by penetration is a very serious sexual offence. As such, the corresponding penalties for a conviction can be substantial.

Being convicted of sexual assault by penetration is likely to led to lengthy prison sentences, but the exact punishment will depend on a wide range of issues, including the presence of aggravating or mitigation factors.

Here, we discuss what assault by penetration means in the eyes of the law, how it differs from rape, what the assault by penetration sentencing guidelines are and what the additional consequences may be following a conviction.

What does assault by penetration mean?

Assault by penetration (or sexual assault by penetration) is an offence which is set out in Section 2 of the Sexual Offences Act 2003.

Based on this, the meaning of assault by penetration involves:

• Intentional penetration of the vagina or anus of another person
• With a part of the offender’s body or anything else
• Penetration of a sexual nature
• The other person not providing consent
• The offender not reasonably believing that the other person consented

What is the difference between rape and assault by penetration?

The primary difference between assault by penetration and rape is the means of penetration. An alleged offender will be charged with rape if they used their penis to penetrate a victim, whereas assault by penetration will relate to any other part of the body or foreign object.

While the sentencing guidelines for both offences are severe, the penalties for rape are harsher compared to assault by penetration.

What is ‘consent’ for assault by penetration cases?

In this context, consent is an agreement to partake in a specific activity. This is where the person has the liberty and psychological capability to make a decision.

This means that someone needs to understand and comprehend what actions are taking place so that they can provide informed consent. Even where someone may verbally agree to a certain action, if they are intoxicated or under the influence of drugs, they are unlikely to have the ability to provide consent.

What is digital penetration?

Digital penetration is a specific type of assault by penetration. It specifically involves penetrating someone’s body using the fingers (digits). This means that it is an offence which can be committed by both genders.

We provide further information on digital penetration in our blog What is Digital Penetration? Click here to find out more.

What is the sentence for assault by penetration?

Sexual assault by penetration sentencing guidelines can be very serious. However, they are also broad, and will cover a number of factors which will determine the severity if the sentence that is handed out.

The maximum sentence you could receive for assault by penetration is life imprisonment. That said, sentencing can also range from a community order to 19 years in custody.

When making a decision regarding the sentence that is handed out for assault by penetration, the court will assess which categories of harm and culpability the offence falls into.

Harm is separated into three categories:

• Category 1 – This involves:
  • The extreme nature of one or more category 2 factors or an extreme impact caused by a combination of category 2 factors
• Category 2 – This involves:
  • Severe psychological or physical harm
  • Additional degradation/humiliation
  • Abduction
  • Sustained incident
  • Threats of violence (beyond what is inherent in the offence)
  • Forced/uninvited entry into the victim’s home
  • The victim was vulnerable
• Category 3 – Factors in categories 1 and 2 are not present

Culpability is separated into two categories:

• Culpability A – This involves:
  • Significant planning
  • Acting with others to commit the offence
  • Use of alcohol or drugs
  • Abuse of trust
  • Previous violence against the victim
  • If the offence took place during the course of a burglary
  • The offence was recorded
  • The offence was commercially motivated
  • The offence was racially or religiously aggravated
  • The offence was motivated by hostility towards the victim’s sexual orientation (or perceived sexual orientation)
  • The offence was motivated by hostility towards a victim’s disability (or perceived disability
• Culpability B – Factors in Category A are not present

A full breakdown of the sentencing guidelines related to assault by penetration can be found here.

Offences of assault by penetration against children under the age of 13 carry separate sentencing guidelines. You can find out more about the sentencing guidelines for assault by penetration of a minor here.

Are there other consequences for assault by penetration?

If you are convicted of assault by penetration, there are a range of additional consequences alongside a standard criminal conviction. Such consequences could include, depending on the circumstances:

Being named on the Sex Offenders Register

If you are convicted of a sexual offence in the UK, you will be added to the Sexual Offenders Register.

The amount of time you spend on the Sex Offender’s Register will depend on the assault by penetration sentence you are handed.

For offenders over the age of 18, the following applies:

• Caution – 2 years
• Conditional discharge – the length of the conditional discharge
• Hospital order without restriction order – 7 years
• 6 months or less imprisonment – 7 years
• Between 6-30 months imprisonment – 10 years
• Hospital order subject to a restriction order – Indefinite
• Imprisonment for more than 30 months – Indefinite
• Any other type of disposal (such as a Community Order >12 months) – 5 years

These periods are reduced if the individual is under 18 at the time of conviction.

Sexual Harm Prevention Order

A Sexual Harm Prevention Order (SHPO) may be implemented following an assault by penetration sentence. If in place, a SHPO will implement certain conditions such as preventing you from being able to travel abroad or preventing access to the internet without computer monitoring software in place.

Ancillary orders

An ancillary order could also be put in place following an assault by penetration charge. This could include restraining orders, reparation orders, confiscation orders and victim surcharge.

What should I do if I’m accused of assault by penetration?

If you are facing an accusation of assault by penetration, it is vital that you instruct a specialist sexual offence solicitor at the earliest opportunity. By doing so, you will gain a comprehensive understanding of your legal rights and what actions could harm your defence against assault by penetration allegations.

While you may believe that instructing a solicitor to support you will signify guilt, this is not the case. Expert representation will only serve to help your case and is likely to make the difference when it comes to avoiding assault by penetration charges or reducing charges where conviction is unavoidable.

Our assault by penetration solicitors have substantial experience in the defence strategies that can be used when addressing allegations of assault by penetration. We are therefore perfectly positioned to work alongside you to build an effective defence for the allegations from the outset.

Contact our assault by penetration lawyers today

For a free initial consultation, urgent specialist advice, immediate representation, or to speak to us confidentially about allegations of sexual assault by penetration, please do not hesitate to get in touch.

You can contact our dedicated sexual offences solicitors in London, Birmingham, and Manchester by telephone on:

• Brent & Camden London Office: 0207 624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333
• City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you as soon as possible.

24/7 legal representation for sexual assault by penetration allegations

Please get in touch for a free initial consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice on dealing with allegations relating to assault by penetration.

We are available to represent clients all over England and Wales at any time, so please contact our Emergency Number 07836 577 556.