Sexual offences
Assault by penetration
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Indictable only
- Maximum penalty
- Life imprisonment
Actus reus
- Intentionally penetrates the vagina or anus of another (B) with a part of the body or anything else; the penetration is sexual; B does not consent (SOA 2003, s.2(1)).
Mens rea
- Intention as to the penetration.
- A does not reasonably believe B consents — reasonableness judged on all the circumstances, including any steps taken to ascertain consent (s.2(2)). Sections 75 and 76 presumptions apply (s.2(3)).
Defences
Consent, or a reasonable belief in consent · Penetration was not sexual · Deny penetration / identification
Sentencing Council
Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 19 years’ custody.
At the police station
Indictable only; life maximum. Same consent structure as rape, but the instrument is not the penis. We want a solicitor on the call.
When to involve a rep or solicitor
Police station advice is free under legal aid and is not means-tested. For this allegation we would normally want a solicitor involved early.
Authoritative sources for this page
Statute plus Sentencing Council (and CPS where listed) are the two primary sources we used for mode of trial, maximum and elements. Case links are from our verified registry only.
- Statute:Sexual Offences Act 2003, s.2 ↗
- Sentencing Council:Sentencing Council definitive guideline ↗
- CPS:CPS — Rape and sexual offences (full guidance) ↗