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Assault by penetration

s.2Sexual Offences Act 2003

Intentionally and sexually penetrating the vagina or anus of another person with a part of the body or anything else, without their consent and without a reasonable belief that they consent.

Assault by penetration · Sexual Offences Act 2003, s.2Card 92 / 85

Points to prove

Intentionally penetrated
The vagina or anus of another person (B)
With a part of their body or anything else
The penetration was sexual
B did not consent to the penetration
The defendant did not reasonably believe that B consented

Key definitions

Penetration – s.79(2): a continuing act from entry to withdrawal.
Vagina – s.79(9): includes the vulva.
Part of the body – s.79(3): includes a part surgically constructed (for example, through gender reassignment surgery).
Sexual – s.78: a reasonable person would consider that (a) whatever its circumstances or anyone’s purpose, it is sexual by its nature, or (b) because of its nature it may be sexual, and because of its circumstances or the purpose of any person (or both) it is sexual.
Consent – s.74: a person consents if they agree by choice, and have the freedom and capacity to make that choice.
Reasonably believe – s.2(2): judged having regard to all the circumstances, including any steps the defendant took to find out whether B consented.
Presumptions – ss.75 and 76 apply (s.2(3)). Under s.75 (evidential), circumstances such as violence, unlawful detention or B being asleep or unconscious mean B is taken not to have consented unless evidence is raised to the contrary. Under s.76 (conclusive), deception about the nature or purpose of the act, or impersonating someone known personally to B, means lack of consent and lack of belief are conclusively presumed.

Good to know

Unlike rape, this offence can be committed by a person of any sex, and with any object or part of the body (for example, fingers).
The mouth is not covered. Penetration of the mouth with the penis is rape (s.1).
Where B is under 13, the offence is assault of a child under 13 by penetration under s.6. Consent is irrelevant and the maximum is also life.

Legislation: Sexual Offences Act 2003, s.2 (opens legislation.gov.uk in a new tab)
Mode of trial: Indictable only
Maximum penalty: Life imprisonment