Old Bailey Solicitors

Assault by Penetration: Legal Implications and Consequences


Understanding the legal definitions and implications of various criminal offences is of utmost importance. One such critical subject is assault by penetration, a term referring to a specific form of sexual offence.

At Old Bailey Solicitors, we are committed to shedding light on legal matters that impact individuals’ lives. In this comprehensive blog post, we will consider the concept of digital assault by penetration and its interpretation within the framework of the Sexual Offences Act 2003 to explain how the offence differs from sexual assault.

Deciphering Digital Assault by Penetration

Assault by penetration involves the non-consensual act of penetration of the anus or vagina of another person. This can be done by any part of a person’s body and/or an object. For example, the use of a finger (digitally) to penetrate the other, their tongue, a sex toy or any other object.

Importantly, this act is deemed illegal (in the context of offences committed against adults) only when it occurs without the explicit consent of the penetrated person. Context and circumstances surrounding the act are crucial in determining whether a person consents to penetration or otherwise.

Within the context of the law, the vagina of another is ‘penetrated’ when the body part/object passes the labia of the pudendum. An offence relating to penetration of the anus is committed when the body part/object passes the sphincter into the anal canal. Even very minimal penetration is sufficient for the purposes of the legislation. However, where only the outside of the vagina or anus is touched, a more appropriate charge would be sexual assault. In some cases, a jury may be offered ‘alternative’ counts, and may find a defendant guilty of sexual assault but not assault by penetration, if they can be sure that a person was touched externally but unsure if they had been penetrated.

Navigating the Sexual Offences Act 2003 in the Context of Digital Assault by Penetration

The Sexual Offences Act 2003 contains various sexual offences, including digital assault by penetration. However, given that the focus of this blog is on the penetration offence, focus will be on the relevant legislation for this.

Section 2: Assault by Penetration

Section 2 of the Sexual Offences Act 2003 explicitly addresses assault by penetration, encompassing cases of digital penetration against adults.

Section 6: Assault of a child under 13 by Penetration

Section 6 of the Sexual Offences Act 2003 deals with section 2 offence when committed against a person under the age of 13. Of course, any sexual offence committed against a child becomes much more serious and the sentence for such is greater accordingly.

In terms of the difference in the legislation, the only additional factor to the Section 2 offence is that the person is under the age of thirteen at the time of the offence.

Given offences against children are oftentimes not reported until the person is older, a person will have still committed an offence under Section 6 even if the report was not made until that person was over 13 years old.

Consent and Digital Assault by Penetration

Consent remains the linchpin in evaluating the legality of any sexual activity, including digital assault by penetration.

The Sexual Offences Act 2003 emphasizes the necessity of voluntary and informed agreement between all parties involved.

For penetration to be considered within the boundaries of the law, it is paramount to obtain unambiguous consent, devoid of any coercion, threats, or incapacity due to factors like age or intoxication.

For the Section 6 offence, it is key to note that the age of consent in the United Kingdom is 16 years old. Therefore, proving ‘consent’ is not a requirement of the Section 6 offence. As such, even if a party under 13 ostensibly consented to the penetration, the act would still be illegal.

Likewise, if a person is charged under the Section 2 offence and the Complainant is between 13-16 years old, consent cannot be given by the Complainant, even if express consent was given to that act.

On this point, should both parties be under the age of consent (both the Complainant and accused party) and both parties have ‘consented’ to the act, the Crown Prosecution Service will often consider whether it is in the public interest to pursue a case against the accused as a result.

Legal Consequences

Participating in non-consensual digital assault by penetration is a serious sexual offence.

Section 2 Offence

If proven guilty, the consequences of a conviction of assault by penetration under Section 2 are likely a custodial penalty. However, this is not always the case and the court will consider the Sentencing Guidelines for the offence in deciding whether to impose a custodial setting.

The offence itself has a starting point of 15 years in custody for the most severe of cases (with a maximum of life imprisonment, should a case be so serious as to depart from the guidelines), to, at the lowest end, a starting point of 2 years in custody. The Sentencing Guidelines give a range of a high-level community order to 4 years’ imprisonment for the least serious cases. As such, a conviction for assault by penetration does not automatically result in a custodial sentence.

Furthermore, any sentence below 2 years is capable of being suspended at the discretion of the judge.

Section 6 Offence

The sentence in relation to assault by penetration against a person under 13 has a higher starting point on the sentencing guidelines, which is commensurate with the severity of the crime being higher when committed against a child.

As such, for the most serious of cases, a starting point of 16 years in custody is taken, and for the lowest level of offences, 4 years in custody.

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Matt Bishop

Trainee Solicitor

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We have offices in Brighton, London and Horley and advise clients on all aspects of criminal defence allegations, including sexual offences, violent offences and drug offences.

Seeking Legal Guidance

If you or someone you know is implicated in a case related to digital or any other assault by penetration, seeking immediate legal assistance is essential.

Given the consequences of a conviction for these offences, it is therefore of vital importance to instruct competent, understanding and strong legal representatives to guide you through proceedings.

At Old Bailey Solicitors, we pride ourselves on being attentive, having strong legal knowledge and always striving for the best results for our clients. If you have been accused of digital penetration, or any kind of assault by penetration, please get in touch with us as early as possible in the development of your case.

Matt Bishop headshot

Matt Bishop

Trainee Solicitor

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