Sexual Offences

An offence of rape is committed if a person (the defendant) intentionally penetrates the vagina, anus or mouth of another person (the complainant) with his penis when the complainant does not consent to this penetration and defendant did not reasonably believe that the complainant was consenting.  If a defendant argued that they had a reasonable belief that the complainant was consenting, the court would look at all of the circumstances including any steps which had been taken to confirm whether the complainant was consenting.

The law contains a large number of sexual offences which covers a wide range of behaviour.  The most common offences against adults are sexual assault and assault by penetration.

Assault by penetration: this is committed if the defendant intentionally penetrates the vagina or anus of the complainant with an item other than their penis when the complainant did not consent, and the defendant did not reasonably believe that they were consenting.

Sexual assault: this is committed by any form of touching which is sexual in nature and which was done without consent or reasonable belief in consent.

There are a large number of other criminal offences which deal specifically with sexual offences against children and a wide range of further behaviour including sexual offences committed against family members, people with mental disorders or committed by a person in a position of trust, such as a teacher.  If you are being investigated for any of these offences, we would urge you to contact us immediately.

The maximum sentence for rape and/or assault by penetration is life imprisonment.  The maximum sentence for sexual assault is ten years imprisonment.  Other offences carry different maximum sentences, and we would encourage you to contact us directly should you require further information concerning a separate offence. It is rare however, once any mitigation has been taken into account for a defendant to receive the maximum sentence.  Judges are required to take account of guidelines that have been set by the Sentencing Council.

The vast majority of sexual offences have no time limit on when charges can be brought.  This is evidenced by the large number of cases currently before the courts concerning allegations of a historic nature.  When a significant amount of time has elapsed since an incident is said to have taken place, this can cause difficulties as all parties can find it harder to recall what took place and the possibility of obtaining forensic evidence becomes less likely.  The prosecution are however entitled to bring such charges if they believe that there is a realistic prospect of conviction, and a prosecution is in the public interest.  If we believe that it may be beneficial to make representations to the police that charges should not be brought, or existing charges should be reviewed, our sexual offences lawyers can draft expert written representations in this regard.

Yes, an offence of rape is committed if any individual penetrates another in the manner described above and without consent or reasonable belief in consent.  It is not a defence to the allegation merely to state that you were in a relationship and had previously had consensual sex.  All parties must consent to sex on each and every occasion, throughout a relationship.

Consent in a legal context basically means the same as in everyday use.  A person consents to sexual activity if they agree by choice and have the freedom and capacity to make that choice.  There are circumstances where a court will assume that consent was not given unless the defendant can show sufficient evidence otherwise.  These include;

• where it is shown that a complainant had been assaulted, threatened or unlawfully detained at the time of sex,
• where the complainant was asleep, unconscious or unable to communicate whether they consented
• where a substance had been administered which left the complainant ‘stupefied or overpowered.’

It is possible for an individual to consent to sexual activity when they have voluntarily consumed alcohol.  The issue is whether they remain able to provide consent freely.  If the complainant has lost their capacity to choose whether to consent, they are unable to do so, and any sexual activity committed in those circumstances would constitute a criminal offence unless the defendant had a reasonable belief in consent.  If however a complainant has voluntarily consumed alcohol but remains capable of choosing whether to consent to sexual activity, it would not be a criminal offence to engage in consensual sexual activity with them.

It is likely, but this depends on the nature of the case and the amount of time which has passed between when the incident is said to have taken place and when the matter is reported to the police.  In many cases, the prosecution will obtain DNA evidence or medical evidence.  The defence will almost always be entitled to instruct their own experts in this regard and it is often the case that different experts will have different interpretations on forensic and medical evidence which can be hugely important at trial.  Our sexual offences solicitors have developed very good working relationships with a large number of expert witnesses who can assist in this way.

It is becoming more and more common for evidence of text messages and instant messaging to be relevant at trial.  The police will usually seize mobile phones and devices from a defendant so that they may be downloaded and any relevant messages or call data obtained.  The defence will be entitled to access this material and can consider instructing an independent expert to analyse the material should this be necessary.  It is also possible that cell-site evidence may be relevant to show in which area a person’s mobile phone was located at the time of an offence.  Finally, if evidence of social media postings are available and considered relevant, these can also be adduced at trial.

The general rule is that evidence of a complainant’s sexual history is irrelevant and inadmissible.  The issue in any case involving consent is whether the complainant gave their consent on that occasion and any previous instances when they did so with the defendant or any other party is not usually considered relevant.  There are however limited circumstances in which a court will permit evidence of a complainant’s sexual history.  In summary, this is to contradict evidence put forward by the prosecution about the complainant’s previous sexual history or where the evidence relates to a relevant issue at trial other than whether they consented.  When the issue is one of consent, the court may consider allowing evidence of previous sexual history where the behaviour in question is said to have taken place at or about the same time as the alleged offence or where the behaviour in question was so similar to the complainant’s behaviour in the current case that it could not reasonably be explained as coincidence.  Finally, the court must also be satisfied that to refuse to allow the evidence to be heard would result in the court reaching an unsafe conclusion.

If you are convicted or cautioned for certain sexual offences, the prosecution can apply to the court for a Sexual Harm Prevention Order.  These orders can preclude an individual from any number of activities including having unsupervised contact with children, either in a working environment or otherwise, attending certain places such as parks or schools or accessing the internet without specific software.  It is also possible for these orders to prevent the defendant from traveling abroad.

Sexual Harm Prevention Orders should only be made where they are considered necessary to protect the public from sexual harm.  They are either made for a fixed period of at least 5 years or until further order.

It is possible to oppose the application for the order or indeed question whether the individual terms of the order are necessary and proportionate.  It is also possible to apply to the court to vary or discharge the order in certain circumstances.  Our expert sexual offences lawyers are well trained in making these arguments on behalf of a defendant in order to try to reduce the onerous terms of such orders.

If you have been convicted of a sexual offence, it is likely that you will be made subject to notification requirements.  Furthermore, if you are cautioned for a sexual offence at the police station, there is a very real risk that you will be made subject to notification requirements also.  It is therefore very important that you obtain legal advice if interviewed at the police station so that you may consider very carefully whether a caution should be accepted.

These notification requirements can be very onerous, obliging an individual to inform the police of their personal details including name, date of birth, address, national insurance number, details contained within their passport and other identity documents, details of bank and building society accounts or debit and credit cards and any plans to reside at a different address or travel abroad.  The duration of the notification requirements will depend on the sentence imposed.

Generally yes, although the press are not allowed to report any matter likely to identify the complainant in most proceedings concerning sexual offences.  This restriction continues for the lifetime of the complainant, unless lifted by order of the court. Such an order would only be made in limited circumstances. The defendant, if over 18, can generally be identified unless this would lead to identification of the complainant, such as when they are husband and wife.