The Sexual Offences Act 2003 (SOA 2003) outlines the sexual offences which are illegal under the laws of England and Wales. These include:
- rape (s 1);
- assault by penetration (s 2);
- sexual assault (s 3);
- causing a person to engage in sexual activity without consent (s 4).
A man commits rape if he intentionally penetrates the vagina, anus or mouth of another person with his penis without their consent and he does not reasonably believe that consent was given.
Someone found guilty of this offence can be jailed for life.
Assault by penetration
It is an offence for a man or woman to penetrate the vagina or the anus of a person without their consent. Penetration can be made with a body part, eg, a finger, but any other object would be included if the intent was sexual (eg, a bottle, mobile telephone etc).
This offence carries a maximum sentence of life imprisonment.
Intentionally touch another person in a sexual manner without that person giving their consent is an offence.
On summary conviction, a defendant faces up to six months jail and/ or a fine; if found guilty in Crown Court, they can be jailed for up to 10 years.
Inciting sexual activity without consent
It is an offence to cause or encourage another person to engage in sexual activity without his/ her consent.
The length of the sentence in this case depends on whether the sexual activity included penetration. If it did, the offence is treated along the lines of rape and the maximum penalty is life imprisonment. If the sexual activity involved no penetration, the offence is treated like sexual assault and carries a maximum prison sentence of 10 years on indictment or up to six months jail and/ or a fine in the magistrates’ court.
Definition of consent
All the above sexual offences centre around consent. Section 74 of SOA 2003 defines consent as: ‘if he agrees by choice, and has the freedom and capacity to make that choice.’ Consent can be express or implied and the accused will have to show that s/he reasonably believed that consent was given to escape charge.
Age of consent
The age of consent is the age whereby an individual can partake in consensual sexual activity with another individual. It is set at 16 regardless of whether the individual is partaking in heterosexual, homosexual or bisexual acts.
Why do we have an age of consent?
The law is designed to protect the rights and interests of young people who are not yet old enough to make a choice about engaging in sexual activity and targets those who pressure or force young people to engage in sexual activity. This is reflected by ss 5-8 of SOA 2003, which makes rape and sexual assault of a child under of 13, or causing them to engage in sexual activity, offences regardless of whether or not the child consented or not.
SOA 2003 does not aim to prosecute young people who engage in sexual activity with other young people unless the case involves some form of exploitation or abuse. With this is mind, there are a number of child sex offences under the Act which make it illegal for someone aged over 18 to engage in or incite sexual activity with or in front of someone under 16, groom them, or make them watch a sex act.
Protection for young people over the age of 16
SOA 2003 sets out a number of position of trust offences to protect children over the age of 16, who despite being over the age of consent are considered to be potentially vulnerable to sexual abuse by people in positions or trust.
Position of trust
A position of trust is a position or occupation that has power or authority over a child’s life and/ or potentially has an influence on the future of that child.
Under SOA 2003, individuals are in a position of trust if they:
- work in a young offenders institution;
- work in a hospital;
- work in an educational institution;
- act as a legal guardian.
Abuse of trust offences
The abuse of trust offences under SOA 2003 occur when a child under 18 is involved, whereas for members of the general public who are not in these positions of trusts, the offences will occur when the child is under 16.
These offences are:
- sexual activity with a child – this includes any kind of sexual touching (s 16);
- causing or inciting a child to engage in sexual activity (s 17);
- engaging in sexual activity in the presence of a child (s 18);
- causing a child to watch a sexual act (s 19).
Where someone is married to or in a civil partnership with the young person they will not fall foul of the position of trust offences.