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What is Digital Penetration?

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Assault by penetration and, by extension, digital penetration are very serious sexual offences which carry significant penalties. This means that the prospect of facing a digital penetration charge, including digital penetration of a minor, is understandably daunting.

Lengthy prison sentences are a distinct possibility for anyone facing a digital penetration charge, but the exact extent of the punishment will be determined by various other factors.

Here, we discuss what digital penetration is, how it differs from other sexual offences, the potential penalties you could face for digital penetration and what steps you should take if you are facing a charge.

What is the legal definition of digital penetration?

Digital penetration is a specific form of assault by penetration.

Assault by penetration is set out in Section 2 of the Sexual Offences Act 2003 and involves:

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

Digital penetration specifically involves penetrating someone’s body using fingers. This means that it is an offence which can be committed by both genders.

What Is Digital Penetration of a Minor?

In the UK, the legal age for sexual activity is 16 years old. This means that if a victim of digital penetration is younger than 16, they are not deemed to be able to provide consent, even where they may have agreed to the activity. This also amounts to digital penetration of a minor.

It is also important to note that if the victim of the digital penetration was under the age of 13, a separate offence of assault of a child under the age of 13 by penetration applies.

Understanding what digital penetration of a minor is and how it differs from digital penetration is incredibly important, as the sentences can vary significantly – being more severe for the former offence.

What are the sentencing guidelines for digital penetration?

Digital penetration offences fall under the umbrella of assault by penetration. The sentencing guidelines for assault by penetration are broad and cover a number of factors which ultimately determine the severity of the sentence.

When determining the offence category that should be applied, the courts will assess which categories of harm and culpability the digital penetration 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

So, cases of digital penetration where it is deemed that a greater deal of harm was caused, and the offender was more culpable will lead to more serious charges.

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

For offences of digital penetration and assault by penetration against children under the age of 13, the sentencing guidelines are separate. More information regarding the potential penalties for assault by penetration and digital penetration of a minor can be found here.

What is the maximum sentence for digital penetration?

The maximum sentence for digital penetration may be handed out for an offence which is deemed to fall under Category 1 of harm and Culpability A.

The starting point for an offence that falls under this bracket is 15 years’ custody. However, this can be extended, meaning the maximum sentence for digital penetration could be 19 years’ custody.

What is the minimum sentence for digital penetration?

The minimum sentence for digital penetration may be handed out for an offence which is deemed to fall under Category 3 of harm and Culpability B.

The starting point for offences which fall under this bracket is 2 years’ custody. This can be reduced, meaning the minimum sentence for digital penetration could be a high level community order.

Are there any other consequences to being convicted of digital penetration?

If you are found guilty of digital penetration, there are a range of other potential consequences, which will include:

Being named on the Sex Offenders Register

In the UK, if you are convicted of any type of sexual offence, you will be placed on the Sexual Offenders Register. Digital penetration is an offence that falls under the Sexual Offences act 2003, which means you will be added to the register following a conviction, regardless of what sentence you may receive.

The amount of time you spend on the Sex Offender’s Register will depend on the digital penetration charge. 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

Conviction for a digital penetration offence may also lead to a Sexual Harm Prevention Order (SHPO) being put in place. This implements certain conditions, such as preventing you from being able to travel abroad or access the internet without having computing monitoring software installed.

Ancillary orders

Ancillary orders could also be put in place following a digital penetration charge. This may include being subject to restraining orders, reparation orders, confiscation orders, and victim surcharge.

Are there any defences to digital penetration?

It is a defence if it can be shown that the victim consented to the activity or that you had reasonable belief that the victim consented. This may also apply if the victim was under the age of 16, but you had a valid reason to believe that they were over the age of 16.

In addition to this, general defences relating to the defendant, rather than the crime itself, may apply in digital penetration cases. For example, general defences could include:

  • Duress
  • Insanity
  • Mistakes
  • Automatism

What should I do if I have been charged with digital penetration?

If you have been accused of a digital penetration offence, including digital penetration of a minor, it is crucial that you speak to an expert sexual offence solicitor as soon as possible. From here, you will be able to clearly understand your rights and what actions may potentially harm your defence against allegations of digital penetration.

It is often thought that instructing the support of a solicitor will signify guilt in some way. This is not the case, as expert representation will likely make the difference when it comes to avoiding digital penetration charges or reducing digital penetration charges where conviction is unavoidable.

Our digital penetration defence solicitors have substantial experience in the various defence strategies that can be applied to allegations of serious sexual offences, including digital penetration and digital penetration of a minor. As such, we are perfectly positioned to work alongside you to build an effective defence for the allegations from the outset.

Contact our digital penetration defence lawyers today

For a free initial consultation, urgent specialist advice, immediate representation, or to speak to us confidentially about allegations of digital 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:

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 digital 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 digital penetration.

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

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