Assault by Penetration
This is a new offence introduced by the Sexual Offences Act 2003 with the purpose of bridging the gap between rape and sexual assault. Its definition is provided in section 2(1) of the 2003 Act:
“A person (A) commits an offence if –
- he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
- the penetration is sexual,
- B does not consent to the penetration, and
- A does not reasonably believe that B consents.”
Actus Reus: (a)Non-penile penetration of the vagina or anus; and (b) Absence of B’s consent.
Mens Rea: (which is identical to rape) (a) Intentional penetration; and (b) A lacks a reasonable belief in B’s consent.
Comparisons with the Offence of Rape
Although the definition of this offence has many similarities with the one of rape, there are some significant distinctions. The assault by penetration includes a wider range of body parts or anything else with which a person can penetrate another. This gives the opportunity for female defendants as well, while, on the other hand, it excludes the mouth. In any case, section 2 of the 2003 Act denotes that non-penile penetration is as serious as rape.
The same considerations about consent and belief in consent apply in cases of assault by penetration as they do in cases of rape. The only unexplored element here is the requirement for the penetration to be sexual in nature.
The definition of ‘sexual’ is given in section 78 of SOA 2003:
“Penetration, touching or other activity is sexual if a reasonable person would consider that –
- whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
- because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”
The first subsection of section 78 is reasonably clear; an act must be sexual in nature, even if the defendant does not gain sexual gratification from it, or even if the defendant’s intentions were not sexual. If the act is sexual in nature it suffices. What is reasonable is for the jury to determine.
The second subsection section 78 is slightly more complex. When the question of whether the act is sexual in itself is ambiguous, the jury must consider whether the nature of the act may make it sexual and, if it does, whether, in the particular circumstances of it, it was in fact sexual. Both questions must be answered affirmatively for the conduct to be sexual.
Examples of sexual conduct:
- Grabbing a pocket on V’s tracksuit bottoms (R v H  1 WLR 2005 (CA))
- Kissing V’s face (W  EWCA Crim 3138)
- D rubbing his penis on V’s body (R v Osmani  EWCA Crim 816)
- Touching V’s breasts (R v Burns  EWCA Crim 1451)
In the case of R v H  1 WLR 2005, the defendant had pulled the complainant’s tracksuit bottoms and said to her “Do you fancy a shag?”. The trial judge said that the comment in connection with the action of the defendant made the act sexual in nature. However, this approach was later overruled in the Court of Appeal, where it was held that each element (the act and the comment) should have been considered separately. The first question that should be asked is whether the act could be sexual. Only if it could be considered sexual can the second question about the circumstances be asked. In other words, if the act was not sexual in its nature, then it does not matter that the circumstances may make it sexual.
Similarly, in the case of R v George  Crim LR 52, it was held that the removal of a shoe by a foot fetishist could not be considered sexual because it was not sexual in nature. In the case of H, it was held that the George case was wrongly decided because the definition of what may be sexual was too narrow. The case both narrows and widens the scope of a sexual act at the same time.