Sexual assault is an easy allegation to make and is sometimes seen as a hard allegation to defend. Persons accused of sexual assault often find that they are in a position of ‘my word against theirs’ and feel that they have an uphill struggle. However, if a defence for an allegation of sexual assault is properly and meticulously planned and well-presented then the defendant often has a good prospect of success, although this will of course depend upon the facts of each particular case.
This article will consider the legal definition of sexual assault, what must be proven for there to be a conviction, and what you should do if you have been accused of sexual assault.
How is a conviction for sexual assault established?
In order for a court to return a verdict of guilty the prosecution must have made them sure of each and every element of the offence of sexual assault; three out of four is not enough, nor is a conclusion that the defendant may have committed the offence or even probably did. The tribunal of fact must be sure of every aspect, nothing less will do.
The elements of sexual assault that the prosecution will need to prove:
The offence of sexual assault is set out at section 3 (1) of the Sexual Offences Act 2003:
“(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
Intentionally touching another person:
Section 79 (8) of the Sexual Offences Act 2003 states that:
“ Touching includes touching –
(a) with any part of the body,
(b) with anything else,
(c) through anything”
This therefore means that touching a clothed part of another’s body is included within the offence; skin on skin contact is not necessary.
The offence requires the touch to be an intentional act; it must be deliberate rather than accidental.
This requirement raises the issue of drunkenness or intoxication. Does the fact that you were very drunk at the time when you touched another mean that you cannot be said to have intended the act?
The courts have said that voluntary intoxication can prevent a finding of intent in certain circumstances, namely when the offence is one of “specific or purposive intent”, see R v Heard  1 Cr.App.R. 37 CA.
Sexual assault is not however a specific intent offence and the mere fact that the defendant was drunk does not, in and of itself, mean that they were incapable of intending to touch another, this is the case no matter the level of voluntary intoxication.
The touch being sexual:
The intentional touch is required to be sexual in nature. Section 78 of the Sexual Offences Act 2003 states that touching is sexual:
“… if a reasonable person would consider that –
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of the circumstances or the purpose of any person in relation to it (or both) it is sexual.”
Subsection (a) covers those acts that a reasonable person would consider to be self evidentially sexual because of the inherent sexuality of the act. Subsection (b) covers touching which may or may not be sexual depending upon the surrounding circumstances in which it is being carried out.
The Court of Appeal, in R v H  2 Cr.App.R. 9, CA, set out a two stage approach to subsection (b). It is first asked whether the touching, irrespective of the surrounding circumstances, might be sexual. If the answer is yes, the circumstances and purpose are considered to establish whether in actual fact it was sexual.
Lack of consent:
Section 74 of the Sexual Offences Act 2003 defines consent as follows:
“For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
The courts have considered the existence of choice and freedom to be necessary components of consent and have described the assessment of consent as a factual question of common sense, see Assange v Swedish Judicial Authority  L.S. Gazette, Novemeber 17, 17, DC  EWHC 2849 (Admin).
Consent is not valid if it is based upon deception, as in R v McNally  2 Cr. App.R 28, CA and will be lacking if alcohol has deprived the complainant of the capacity to make a choice as in R v Bree  2 Cr.App.R. 13, CA.
Reasonable belief in consent:
Even in a situation when there is intentional sexual touching to which the recipient does not consent, the accused will not be guilty of sexual assault if he can point to his reasonable, albeit erroneous, belief that there was consent.
Section 3 (2) of the Sexual Offences Act 2003 considers how the question of reasonableness should be addressed:
“(2) 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.”
There is authority which pre-dates the 2003 Sexual Offences Act suggesting that a belief fuelled by the accused’s own voluntary intoxication will not be a reasonable one, see R v Woods (W.), 74 Cr.App.R. 312, CA and R v Fotheringham, 88 Cr.App.R. 206, CA. This is ultimately a question of fact though and so it cannot be said that a drunken or drugged belief will never be reasonable.
Presumptions about consent and reasonable belief in consent:
Sections 75 and 76 of the Sexual Offences Act 2003 set out evidential and conclusive presumptions that, in certain circumstances, will apply to the issues of consent and the accused’s reasonable belief. Both section 75 and 76 apply to the offence of sexual assault by virtue of section 3 (3) of the 2003 Act.
The key difference between the two sections is that the section 75 presumptions just place a burden on the defence to adduce evidence to rebut the presumption that there was no consent, these presumptions apply when:
- the person is using violence against the complainant or causing the complainant to fear that immediate violence would be used against him or against another person;
- the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
- the complainant was asleep or otherwise unconscious at the time of the relevant act;
- because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
- any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
As opposed to section 75, section 76 is conclusive on the issue of consent; no evidence can be adduced to reverse the presumption. Section 76 covers where a defendant intentionally deceived the complainant as to the nature or purpose of the relevant act or where the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Examples of the sort of deception covered by s.76 include pretending that the sexual touching is part of a medical procedure (R v Williams  1 K.B. 340, CCA), part of a medical examination (R v Tabassum  2 Cr.App.R. 328, CA), or where the touching was part of bogus experiment (R v Green  EWCA Crim. 1501).
How sexual assault is tried in England and Wales:
Sexual assault is an offence ‘triable either way’, this means that a sexual assault trial can take place in either the Magistrates’ Court or the Crown Court. Depending upon the circumstances of the alleged offence this can be a decision for the defendant. The choice of venue is a decision that may have a significant impact on the proceedings and so the advice of an experienced lawyer should be sought in relation to the ‘pros and cons’ of each court.
Sentencing for sexual assault
Sexual assault is a serious offence that can attract a sentence of immediate imprisonment. The maximum sentence available in the Crown Court is 10 years imprisonment, and in the Magistrates’ Court 6 months.
In the majority of cases the actual sentence imposed will be well below the 10 year Crown Court maximum due the facts of the case suggesting lesser harm or culpability and the operation of mitigating factors.
As with any criminal allegation that carries the potential for a lengthy custodial sentence quality legal advice should be sought as soon as possible. Advice can never be sought too early; pre-charge advice can often prove to be invaluable when later conducting a defence in a contested trial.
Quentin Hunt has extensive experience in defending clients accused of sexual offences and is known as a ‘go to’ barrister for difficult or sensitive cases. He is a specialist criminal barrister at one of the country’s leading chambers. Contact Quentin for a free no obligation conversation about your case.