A person commits an offence by intentionally penetrating the vagina or anus of another person without consent and without a reasonable belief the person consented. The penetration can be with a part of the body or anything else (s.2 Sexual Offences Act 2003).
|Penetration with a body part (fingers, toes or tongue) where no physical harm is sustained by the victim.
|1 – 4 years
|Penetration with an object
|2 – 5 years
|Penetration with an object or body part, accompanied by an aggravating factor (e.g. more than one offender; abuse of trust; sustained attack)
|6 – 11 years
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For this offence to have been committed, the defendant must intentionally penetrate the victim’s vagina or anus with a part of the defendant’s body or an object. The key word here is “intentionally” – i.e. not accidentally.
If the penetration was accidental then, of course, this offence has not been committed. Equally, the penetration must be of a sexual nature (thus excluding medical examinations etc…). It is also important to note that this offence cannot be committed recklessly (i.e. being reckless as to the penetration). It is for the Crown to prove that you held the necessary intention.
In relation to the penetration, the victim’s vagina, anus or mouth must be penetrated. The penetration does not have to be ‘full’ penetration – a minor penetration with a small object could still suffice. Any object will do.
What is Consent?
Most sexually related crimes involve some aspect of ‘consent’. Consent is defined as;
agreeing by choice, and having the freedom and capacity to make that choice.
A victim does not consent to penetration if they
Remember: if the defendant uses his penis to penetrate the victim, this is rape.
- Do not agree to the penetration
- Do not have the capacity to consent (e.g. if they are below 16, mentally disabled, or intoxicated)
- Do not have the freedom to consent (e.g. being threatened with harm if they do not agree to the penetration)
The prosecution must prove that the defendant did not have a reasonable belief that the complainant consented.
There may be some material (or real) evidence that a person consented, such as text messages or CCTV footage showing a flirtatious encounter. Whilst this is not evidence of consent per se, it does help to establish the mindset of the complainant. Make sure you read our defences page for more information about consent.