Sexual Assault, Defences and The Sex Offenders’ Register

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Do you have a defence?

To be convicted of a sexual assault the prosecution would need to prove (beyond reasonable doubt) that you intentionally and sexually touched another without their consent and you did not reasonably believe they consented. 

There are three defence arguments that often arise:

  1. You did not intentionally touch the complainant.
  2. If you did touch the complainant it was not sexual.
  3. If you did intentionally and sexually touch the complainant you reasonably believed they consented.

There is a further element that can assist your defence. The law states that in assessing whether your belief was reasonable (point 3 above), the court should have regard to all the circumstances, including any steps you have taken to ascertain whether the complainant consented.

For example, if your evidence is that you asked the complainant whether you could touch them and they agreed, you would have an arguable defence. Equally, if you have had previous contact with the complainant and they previously agreed to such touching and it could be implied that such agreement was continuing.

The maximum sentence for sexual assault is 10 years in prison. Clearly, nobody wants to go to prison. For this reason we would always consider all defence arguments first. In situations where there is no arguable defence, and following a conviction, it is vital that the correct mitigation is presented to the Judge to try and keep the sentence less than 12 months as this can avoid the requirement to register as a sex offender - see below.  

The Judge should also take note of the Sentencing Guidelines. In summary, the Guidelines set out three categories of offence determined by the degree of harm caused. The court will also consider your culpability (degree of planning, etc), as well as any aggravating or mitigating factors. You solicitor should try to convince the Judge that you are in a lower category of offence, you have low culpability, there are no aggravating factors and, where possible, have valid mitigation. Depending on how well these points are advanced to the court may determine wither you go to prison or not, or whether you avoid the requirement to sign the Sex Offenders’ Register.

Can you avoid the Sex Offenders’ Register?

Being placed the Sex Offenders’ Register is also known as being subject to the notification requirements. This means that you are required to notify the police of your address, etc, following conviction, caution or warning and to keep the police updated with your personal circumstances.

Many of our clients consider the prospect of being regarded as a registered sex offender as more damaging than the conviction itself, or even serving a term in prison. 

Almost all serious sexual offences, including rape and assault by penetration, and offences against children, will result in a requirement to register as a sex offender.  

However, a conviction for sexual assault may not always result in you being placed on the Sex Offenders’ Register.

You will not need to register if:

  1. You and the complainant were over 18 at the time of the sexual assault, and
  2. You received a prison sentence or community order for under 12 months

It is vital to have specialist representation in court at any sentencing hearing. The purpose of a sentencing hearing is for the Judge to impose the appropriate sentence taking into account the Sentencing Guidelines. Vitally, the hearing also allows defence solicitors to make representations to the Judge with the aim of convincing the Judge not to impose a custodial sentence or, if a prison sentence or community order is imposed, to convince the Judge to impose less than 12 months. 

Such mitigation should be planned carefully, in plenty of time before the hearing. It may benefit you to have a medical or psychological report produced. For example, you may have evidence of depression, or another mental health issue. In a recent case we recently achieved a massive reduction in our client’s sentence because we were able to evidence how his ADHD affected his impulsivity. 

The Probation Service will also produce a report for the court. At PCD Solicitors we will liaise with the Probation Officer and usually review their report prior to the sentencing hearing. It is important that the Probation Service is made aware of any other evidence beneficial to you (such as a medical report). 

Character references may also impact the Judge’s decision, particularly if you have no previous convictions. 

By using a solicitor experienced in sexual assault cases, you can rest assured that any previous case law can be brought to the Judge’s attention prior to sentence. For example, if we find several earlier cases the same or similar to yours where, following conviction, the Judge imposed less that 12 months, there is a strong legal argument that the Judge in your case should also impose less than 12 months. The pressure is placed on the Judge to follow earlier case law because, if they didn’t, you could then appeal their sentence (and no Judge likes to be appealed).

You are only sentenced, of course, once you have been convicted. You will be convicted if you plead guilty or are found guilty after a trial. It goes without saying that as a firm of solicitors specialising in sexual defence work, we would always assess whether you have a defence first. It is always worth arguing a defence if it is realistic. If your defence fails, the correct mitigation can help you avoid prison and avoid the requirement to register as a sex offender. 

Should you wish to discuss your own case with us, we offer a free and informal consultation. Please contact PCD Solicitors on 0151 705 8488. You can also contact Marcus Johnstone direct on 07808 553555.