Sexual Assault & Consent

When it comes to sexual consent, it’s vital to understand exactly what is consent and what isn’t. Without this knowledge, sexual offence cases can arise, which can carry severe legal penalties.

What Is Sexual Assault?

In the UK, sexual assault crimes are defined as the sexual penetration or touching of an individual without reasonably believing that consent was given, as outlined in the Sexual Offences Act 2003. This involves intentional touching or penetration of another person where they did not give consent. This includes touching of clothing, as was the case within R v H (2005) EWCA Crim 732.

Ambiguous behaviour, silence, or hesitation are not deemed as adequate consent. Consent that is given to one sexual act does not mean it is transferrable to another. Please refer to s76 of the Sexual Offences Act 2003 for more information regarding consent to particular acts and forms of deception involved in consent.

If you would like to learn more about deception, impersonation, consent, and sexual assault, please refer to R v Devonald (2008).

It is important to note that sexual assault can occur without the presence of physical harm or injury; it is defined by the absence of consent. For example, if a victim is asleep or threatened in any way to perform sexual acts, this is still defined as sexual assault.

What Is Consent?

Sexual consent is an agreement between people to engage in sexual activity. Consent should be freely given and clearly communicated, and can be withdrawn at any time. To ensure an in-depth understanding of what constitutes consent, you can refer to its definition stated in s74 of Sexual Offences Act 2003.

There are key factors to ensure consent is given and received, but most importantly, the individual must actively consent from their own will and have the capacity to do so. For example, someone who is under the legal age of consent is incapable of consenting.

Alternatively, consent cannot be given if, at any time during the incident, they were deemed unable to make a decision due to brain functioning impairments, in accordance with the Mental Capacity Act 2005.

Similarly, someone who is intoxicated can provide consent; however, this depends on the level of intoxication at the time of the incident. For more information regarding intoxication and consent, please see the Crown Prosecution Service chapter 6, and paragraph 34 of R v Bree (2007).

Sections 1-4 of the Sexual Offences Act 2003 provides that for a sexual assault conviction, the individual must have intentionally committed a sexual act without consent, and did not reasonably believe that the individual consented. Some such acts are as follows:

Rape
Assault by penetration
Sexual assault
Causing a person to engage in sexual activity (non-penetrative)
Causing a person to engage in sexual activity (penetrative)

How do I know if I received consent?

Ideally, sexual consent should be given verbally, and participants can ask for consent verbally to ensure there are no grey areas.

If you are unsure whether you have received consent or don’t know what sexual consent is, you can refer to the Sexual Offences Act 2003, where reasonable belief of consent is explained.

The acquittal of sexual assault allegations can be based on whether the individual reasonably believed they received consent during the sexual act. This includes specific steps taken to gain consent by the other individual.

This is explained further in Ciccarelli (2011) EWCA Crim 2665, where evidence of asking for consent during sexual acts were required, in order for the judge to accept a reasonable belief argument.

What sentences are there for a sexual assault allegation?

The Sentencing Council has specific guidelines in place that outline the average sentences for a range of sexual assault charges. These are to provide an overview of what may be imposed upon an individual if convicted of a sexual assault, contrary to the Sexual Offences Act 2003.

For example, please see individual sentencing guidelines for the below offences that came into effect on 1 April 2014:

Rape – between 4 to 19 years imprisonment, with a maximum sentence of life imprisonment.
Assault by penetration – anywhere between a community order and 19 years imprisonment. The maximum penalty is life imprisonment.
Sexual assault – the minimum sentence is a community order, and maximum sentence is 10 years in custody.
Causing a person to engage in sexual activity without consent – depending on the severity of the offence, the sentencing can be between a community order and life imprisonment.

For a conclusive understanding of Sexual Assault and Consent, please review the Crown Prosecution Service chapter 6.

Contact McArthur Solicitors For Legal Assistance Today

If you need further information or expert legal advice on rape and sexual assault cases, contact McArthur Solicitors today on enquiries@mcarthursolicitors.co.uk or 020 4587 4583.

Our team has a wealth of experience in defending allegations of sexual offences, and understands the stress those accused face when beginning to fight their case. We offer comprehensive, end-to-end support for our clients, and can take over your case even if you have representation already.

Get in touch with us for an initial consultation to understand how we can help you.