Assault by Penetration (Section 2 Sexual Offences Act 2003)

Assault by Penetration is an offence under s.2 Sexual Offences Act 2003. A person (A) commits the 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 (s.2(1)). Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (s.2(2)). For the purposes of Part 1 of the Act, a person consents if he agrees by choice, and has the freedom and capacity to make that choice (s.74). Penetration, touching or any 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 that 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 (s.78). Maximum sentence: on conviction on indictment, imprisonment for life (s.2(4)). The section gives no summary penalty, so the offence is triable only on indictment.

In practice

This is an indictable-only offence: it must be tried at the Crown Court. The charging decision rests with the CPS (not police). All suspects must be interviewed by officers trained in sexual offence investigation. Disclosure must be handled in accordance with the Attorney General's Guidelines. Consider a Sexual Harm Prevention Order application. The suspect must be cautioned in accordance with Code C PACE 1984 before any questions about the offence are put to them. Interviews must be audio-recorded (Code E) or, for indictable offences, may be visually recorded (Code F).