A person commits sexual assault if he:

• intentionally touches another person;
• the touching is sexual;
• the other person does not consent to be touched; and
• the defendant does not reasonably believe that the other person consents.

The offence is deliberately broad. It can cover many different types of alleged conduct, and the seriousness of the case will depend on the circumstances, including the nature of the touching and the impact on the complainant.

What is meant by “sexual touching”?

The touching must be sexual, which means that if the touching is not sexual then there can be no conviction. The question is about the defendant’s purpose in touching the other person. Context is key. A doctor performing a legitimate examination of a patient may touch intimate areas of the patient’s body but his purpose in so doing is not sexual and thus no offence can be committed. If the same doctor were to perform an unnecessary examination for his own sexual gratification rather than for medical reasons he would be guilty of sexual assault.

The court will look at the situation and its surrounding facts to help it determine the defendant’s intention.

What does consent mean?

Consent is often the central issue in a sexual assault case. You can read our deep dive on consent.

The law provides that a person consents if they agree by choice and have the freedom and capacity to make that choice. The question is not simply whether the complainant said “no”. The court must consider the full circumstances and decide whether the prosecution has proved that consent was absent.

A person may lack the capacity to consent in certain situations, such as where they are asleep, heavily intoxicated or otherwise unable to make a free decision.

The law also recognises that a defendant is not guilty if they genuinely believed the other person consented, but that belief must be reasonable. The court will consider all the circumstances, including any steps the defendant took to establish whether consent existed.

Defence strategies

The appropriate defence will depend entirely on the evidence in the case.

There was consent – we can never truly know what is going on inside somebody else’s head, but we can place offences into context to show either that the complainant did consent to the sexual activity or that you reasonably believed she consented. Video evidence from around the time can be helpful, as can witness accounts from people who were present. The police and prosecutors will often try to strip away the context to focus on the incident itself. That prevents the jury understanding what was going on to bring about the incident, it also means that reasons why you believed she consented are not heard. This is why we need to bring the context back.

It didn’t happen – occasionally allegations are malicious. They can be made to hurt you or to get the upper hand in a separate dispute. It is essential that you tell us if you believe that is the case. We will need copies of all messages between you and the complainant so we can consider disclosing them to the police to prevent you being charged at all or to put before the jury to prove you didn’t do it.

Mistaken identification – you will have seen news reports of high-profile cases in which men were convicted despite having nothing to do with the crime. This can happen because of reliance on poor quality CCTV or because DNA has been misinterpreted. We will challenge evidence. We will instruct our own experts to pour over the details to show that you are not the person who committed the crime. We can do this by correcting misinterpreted DNA evidence. By having video evidence enhanced. By taking statements from people who can put you elsewhere. By analysing the cell site information from your telephone to show exactly where you were at the time of the crime.

Evidence that may help your case

Evidence in sexual assault cases can come from many sources. The precise evidence will depend on the allegation, but many offences will rely on things such as text messages, social media communications, phone records, photographs, CCTV, witness accounts or other material that helps establish the circumstances surrounding the allegation.

Evidence about the relationship between the parties, what happened before or after the alleged incident, and whether accounts have changed over time may also be important but there are strict rules about how and when this evidence can be put before a jury.

Because many sexual assault allegations involve events that happened in private, careful examination of statements and surrounding evidence is essential.

Common mistakes defendants make

People accused of sexual assault often feel under enormous pressure and may make decisions that later affect their case.

Speaking without thinking – a person who has been accused of sexual assault is under a huge mental strain whether they are guilty or innocent. We have seen more than one defendant on the back foot at trial because they were poorly advised in the police interview or took no advice at all. You must have a clear idea of what you want to convey to the police before you are interviewed.

Not collecting the right evidence – failing to explore every avenue is an error that can cost dearly. It is vitally important that you have the right evidence from the right people to give you the best chance of succeeding at trial. That evidence might come from a friend, but often it will come from an expert who can analyse evidence from DNA, fingerprints, computers, and so on. Identifying the best expert and getting them on board will give you the best possible chance of acquittal.

Deleting material – we regularly hear clients say that they had a message that would prove the complainant is lying but they deleted it and cannot recover it. Don’t delete important evidence!

Not getting advice – we know, we know, if you didn’t do it then you have nothing to fear. Well, you do. Most police officers – the overwhelming majority – are not out to frame anybody for something they didn’t do; however, they don’t know what happened. They are just people who have their own ideas and prejudices, and who will form their own opinions. Make sure that you can properly articulate your side of the story by instructing a solicitor who can anticipate police questions and help you get your side across clearly.

What happens next?

After a sexual assault allegation is made to the police, they will begin an investigation. Some of our clients have heard through friends of friends that an accusation has been made, but frequently the first you will know about it is when the police turn up to arrest you. You should assume that once you have been arrested the police will search your home to seize any evidence that might be relevant to the investigation. This could be evidence the complainant says she has left in your home such as lost jewellery, but it will also include her DNA on furniture where the sexual assault is said to have occurred. The police will seize any device likely to have photographs or messages on them: that’s phones and computers but they are also likely to take hard drives and maybe even smart watches.

Once an arrest has been made, the police will interview you about what happened. They want to get your side of the story, but they also want to test your account to see whether you are telling the truth. That means they will be looking for errors and inconsistencies in what you tell them – this is why getting it right early is so important.

After the interview, the police will assess the state of their evidence. They may decide there are further avenues of investigation that need to be pursued or they may conclude they have sufficient evidence to pass the matter to the Crown Prosecution Service for their lawyers to decide whether you should be charged with an offence or not. This is an important point in the case where your solicitor should be making representations to the prosecutor and submitting any evidence that might persuade them not to authorise a charge against you. Although the police are under an obligation to look at evidence that leads away from a suspect, we believe that you should be proactive and get as much evidence as possible yourself.

Hopefully, the prosecutor will decide against sending you to court. If they do charge you with sexual assault, then you will appear in the magistrates’ court for your case to be sent to the Crown Court. This is usually a very short hearing, but it will be important as the court will be considering whether to release you on bail or keep you in prison until your trial. We will always be aiming to keep you out of a cell at every stage and will remind the magistrates that you are not guilty and that they can effectively manage any concerns they have about you being at liberty by imposing bail conditions that avoid contact between you and the complainant.

There will usually be two Crown Court hearings: the plea and trial management hearing (PTPH) and the trial. At the PTPH the judge will make directions to ensure that the case is properly prepared and ready for trial. At the trial your barrister and the prosecution barrister will present their cases and the jury will reach a verdict.

Sentencing sexual assault case

Sexual assault carries a maximum prison sentence of 10 years. The sentencing guidelines suggest that the most serious offences should attract a sentence of up to 7 years – these will be offences involving the abduction of the victim and those that cause severe physical or psychological harm.

Sexual assault case studies

Nightclub groping allegation

Mr W was accused of touching a woman’s bottom in a crowded nightclub. He had been extremely drunk at the time of the incident. He told police that he had no memory of being in the club but accepted that he must have done it if the woman said he did. We uncovered a statement from the unused material held by police and disclosed in response to our Defence Statement that showed the complainant’s boyfriend had initially been detained by security staff in the club before they stopped MW. We identified a further witness who was able to tell us that the security staff also detained another man before (literally) jumping on MW. We also made representations to the prosecutors and persuaded them that the video evidence was too poor to identify MW. As a result, the prosecutor agreed that there was no way they could be sure MW was the man on the video or that the security staff had detained the correct man. All charges were dropped before trial.

Children in the justice system

R v JS (A child) – JS was an 11 year old boy who was reported to police by his school teachers after a video circulated of him and a 13 year old girl engaging in sexual activity. He was arrested on suspicion of sexual assault and making an indecent image of a child. We made representations to the police officer that the video clearly depicted a consensual act, JS was two school years below the girl, and thus it was not in the public interest to prosecute such a young boy. The police ultimately agreed and JS was not charged with any criminal offence.

How Chetwode Criminal Defence Solicitors can help

At Chetwode, we recognise the seriousness of sexual offence allegations and the impact they can have on every area of a person’s life.

Our role is to ensure that the evidence is carefully examined and that the legal issues are properly identified from the outset.

We can assist during police investigations, advise during interviews under caution, analyse the prosecution evidence and provide representation throughout court proceedings.

FAQs

Can someone be convicted of sexual assault without physical injuries?

Yes. Sexual assault does not require injury or the use of force. The issue is whether the elements of the offence have been proved.

Does sexual assault require penetration?

No. Where there is penetration, a more serious offence such as rape or assault by penetration may be charged. Sexual assault concerns sexual touching that does not involve the relevant type of penetration.

Can someone be convicted if the defendant says they believed there was consent?

The law recognises a defence where the defendant genuinely and reasonably believed there was consent. However, the court will consider whether that belief was reasonable in all the circumstances.

What sentence can someone receive for sexual assault?

The maximum sentence depends on the circumstances of the offence. Sexual assault is an either-way offence with a maximum sentence of 10 years’ imprisonment.