Historic Indecent Assault Sentencing

Cases dealing with historic indecent assaults, or historical sexual assaults, have become more frequent in recent years following a number of high-profile cases. As well as being frequently covered by the media, these cases are also often unique in the way that they are sentenced due to changes in law between the time of the commission of the offence and the time of sentencing. For this reason, sentencing in these types of cases can often be complex.

If you are under investigation for historical indecent or sexual assault, Old Bailey Solicitors understand that this can be a highly daunting and stressful time. Due to the often complex and serious nature of these types of offences, it is important to instruct the right legal representative for your case. Old Bailey Solicitors can help guide you through the case, to give you the best chance of being acquitted or to explain how sentencing for these offences may work in your case.

What is Indecent Assault?

Indecent assault refers to the offences under section 14 and 15 of the 1956 Sexual Offences Act and generally refers to an offence where the complainant has received a form of ‘unwanted sexual contact’ from the defendant, although this generally does not extend to cover an offence of rape. Instead, it covers any physical act which could be construed in a sexual way and that has been done without the consent of the complainant, as well as cases involving sexual activity with underage individuals or other individuals who are unable to consent, due to mental health conditions.

The 1956 Sexual Offences Act was repealed when the 2003 Sexual Offences Act was introduced and the offence of indecent assault was instead covered in Section 3 of the new Act under a number of very similar sexual assault offences. While indecent assault is therefore not included within the new legislation, the offence is still relevant for offences that have been alleged to have occurred before May 2004. These cases can often be referred to as historic sexual assault.

Sentencing for Indecent Assault

Due to the passage of time between the alleged commission of the offence and the sentencing of the offence, sentencing in these cases is often more complicated than in other cases. While the basic position in law is that it should not be applied retrospectively – meaning an individual should be sentenced according to the law at the time that the offence was committed rather than the law at the time of sentencing – there is a slight exception in this position when it comes to the sentencing of indecent assaults.

In a Guideline on the ‘Approach to Sentencing Historical Sexual Offences’, the Sentencing Council advises courts to sentence offenders of sexual offences under the 1956 Sexual Offences Act, or other legislation pre-dating the 2003 Act, ‘in accordance with the sentencing regime applicable at the date of sentence’, and must base the sentence on the seriousness of the offence. It guides courts to sentence defendants ‘by measured’ reference to any applicable sentencing guidelines for equivalent offences under the 2003 Sexual Offences Act. In other words, courts should consider the sentencing along the lines of the equivalent offences in the 2003 Act. While this may then result in a higher sentence than perhaps would have been given had the individual been sentenced closer to the time of the commission of the offence, the sentence is still limited to the maximum sentence available at the date of the commission of the offence.

Furthermore, the Sex Offenders Register only came into force in 1997. However offenders who commit these types of offences prior to this year will still be subject to these requirements.

Factors Impacting Sentencing for Indecent Assault

As well as the consideration of the relevant guidelines post 2003, the courts will also consider a number of other factors when determining the appropriate sentence for historical indecent assaults. These include:

• Seriousness of the Offence
  • One of the most important factors that the court will take into consideration when sentencing indecent assault cases is the seriousness of the offence. The seriousness is likely to be assessed by factors such as the age of the complainant at the time of the offence, whether or not the assault was penetrative and whether or not the assault took place over a sustained time period.
• Harm Caused by the Offence
  • Another crucial consideration for courts is the harm caused by the offence. As well as standard assessors of harm, in cases of historical indecent assault, the Court will also consider the factors that brought the allegation to light and how the passage of time has affected the impact on the complainant. For instance, if the passage of time can show a sustained and significant impact on the complainant, this is likely to aggravate sentencing.
• Passage of Time (more generally)
  • Due to the passage of time between commission of the offence and sentencing, the court will also have to look at the character of the defendant and whether they have been in good character since the commission or whether further offences have been committed in the meantime. This will mitigate or aggravate the sentence accordingly.
• Age of Defendant When the Offence was Committed
  • The court will also take into account the age of the defendant when the offence was committed. For instance, if the offender was very young or immature at the time of the offence, this may act as a mitigating factor. The age of the defendant at the time of sentencing, however, is unlikely to have an impact on sentence, even if the defendant is very old at the time of sentencing.
• Dates When the Offence was Committed
  • While historic indecent assault will apply to offences committed before May 2004, maximum sentences have also changed between then and 1956. For instance, the maximum sentence for indecent assault on a woman between 1957 and 1960 is 2 years, but this increases to 10 years for assaults carried out from1986 onwards.
• Gender of the Complainant
  • Dependant on the date that the offence was committed, the maximum sentence for assault on a man was initially significantly higher than the maximum sentence for an assault on a woman and so this may have some impact for much earlier cases of indecent assault.

Likely Sentences for Historic Indecent Assault

Historic indecent assaults carry sentences between a community order and a 10 year custodial sentence, dependant on the time the offence was committed and the gender and age of the complainant. However, for an indecent assault to be reported after such a period of time, it is likely to be an allegation of a more serious offence and so it is likely to result in a custodial sentence upon conviction.

Any conviction for sexual assault will also result in being placed on the Sex Offenders’ Register, regardless of when the offence was committed. The length of time the defendant will be placed on the Sex Offenders’ Register will depend on the length of sentence given. For instance, any prison sentence of six months or more for a relevant sexual offence will automatically result in the defendant being placed on the Sex Offenders’ Register for 10 years. Being on the Register carries requirements, such as informing the police of a change of address or intended travel.

Sometimes, sex offences can also result in the granting of orders such as Sexual Risk Orders or Sexual Harm Prevention Orders.

How Can Old Bailey Solicitors Help?

If you have been accused of a historic sexual offence, it is vital that you seek specialist legal representation as soon as possible. These types of cases can be complex and will need to be treated sensitively.   Such cases can carry lengthy custodial sentences and so it is important that you have the right support and legal advice. If you have a case involving an historic indecent assault, contact Old Bailey Solicitors as soon as possible at [email protected] or on 0207 8464 999.