10.4 Assault by penetration This is a new offence created by s.2 SOA 2003.

. To some extent it overlaps with the offence of rape in s.1, and indeed the maximum penalty for the offence is life which suggests that it is regarded with the same seriousness as rape. There are some si nificant differences between the two offences, however.

Actus reus of assault by penetration Assault by penetration is committed where: o A intentionally penetrates the va ina or anus of another person (B) with a part of his body or anything else, o ! does not consent to the penetration and o the penetration is sexual.

. Orifice" #a ina or Anus $rape include mouth) !enetration for this offence must be of the vagina or anus only, and does not include the mouth. "o the list of relevant orifices is more narrow for this offence than for rape.

2. Any ob%ect to penetrate $rape only limit to penis& # may use any part of his or her body or any ob%ect for this penetration. This may include a penis, if # is a man, but goes wider and can include other body parts such as a fin er or a ton ue.

3. 'efendant can be man or woman $rape limited to man& This means that this offence can be committed by either a man or a woman and the victim may also be of either ender. $n this respect the offence of assault by penetration is much wider than rape and there is a deliberate overlap between the two offences.

4. (ithout consent $same to rape& !enetration must ta)e place without the consent of the victim in order for the act to constitute an offence.

*. +enetration as continuin $same to rape&

act

As with rape, penetration is a continuin act and consent must be valid throughout the act in order to avoid liability.

,. +enetration must sexual $rape did not include& Section 2 specifies that for this offence the penetration must be sexual. The meaning of the word %sexual% is defined in s.&' and is explored further in s. (.) below. $t was important to specify that the penetration is sexual because there may be situations in which A penetrates !-s va ina or anus with a body part or ob%ect which is not sexual and which should lie outside the ambit of criminal liability (although absence of consent would still be a relevant factor). .his was not specified in relation to rape, because it can safely be assumed that any penetration of any orifice by A usin his penis is inherently and obviously sexual.

A/.0#0.1 $n the following scenarios, has A committed the actus reus of rape or assault by penetration, or both: A penetrates !-s anus with his penis2 without !-s consent. This may constitute the actus reus of either offence since the anus is a relevant orifice for the purposes of both rape and assault by penetration and the use of the penis, as a body part, is covered by both offences. A penetrates !-s mouth with his ton ue2 without !-s consent. This cannot constitute an offence under s.2 because the mouth is not a relevant orifice under s.*. +hilst # can use a tongue (as apart of the body) to commit an assault by penetration, ' must penetrate a relevant orifice

A penetrates !-s anus with his fin er2 without !-s consent. This constitutes an offence of assault by penetration. The anus is a relevant orifice for both offences but the use of a fin er precludes a char e of rape. A penetrates !-s va ina with a pen2 without !-s consent. This constitutes an offence of assault by penetration. The vagina is a relevant orifice but the use of an ob%ect precludes a char e of rape.

A penetrates !-s mouth with his penis2 without !-s consent. This can only constitute an offence of rape. The penis may be used for either offence, but the mouth is not a relevant orifice for the offence of assault by penetration.

A,T$-$T. /ead the 0ome 1ffice +hite !aper !rotecting the public (provided in your study pac2) and consider the following 3uestion: (hy was the Sexual Offences Act 2003 drafted with a deliberate overlap between the offences contained in ss.1 and 23 $n drafting the legislation the government wanted to ensure that where a defendant penetrated the body of the victim with his penis but the evidence is uncertain as to which orifice was penetrated (e.g. if - was unconscious at the time of the assault) then # could not escape liability by claiming that he had not penetrated the orifice specified in the charge. 4or this reason they ensured that both offences were sufficiently wide to cover any possible penetration by the penis.

 $t could be ar ued that if the s.2 offence was sufficiently wide to cover acts which we call %rape% then the s. offence is an unnecessary addition to the Act and could have been omitted. The overnment chose to retain a separate offence of rape, specifically for male defendants usin their penis, for the purposes of fair labellin . They considered that penetration with a penis is the most serious sexual offence and wanted to preserve the label of -rapist- for defendants committin that act.

4ens rea of assault by penetration The mens rea of this offence is identical to that of rape, namely that # must: o intentionally penetrate o lac2 a reasonable belief in -%s consent. These elements are discussed above in s. (.5.*. $nterestingly, there is no mental element in relation to the -sexualnature of the penetration for a s.* offence. $n other words, the prosecution does not need to establish that ' intended the penetration to be sexual. This means that ' cannot escape liability for a sexual offence merely by claimin that he intended to in%ure # rather than to derive sexual pleasure from the act.

. 0ntention The first part is strai htforward 6 it is difficult to envisage a situation where ' mi ht rec)lessly $that is2 accidentally& penetrate one of the relevant orifices of - in a sexual way.

*.5ac) of reasonable belief As regards the second part of the mens rea, ' may raise a defence that he believed that # was consentin to the penetration. 0f the %ury consider that this belief is reasonable then the mens rea for the offence may not be found. .his creates a partially ob%ective test which is a fundamental change in the mens rea of rape. 7nder the previous common law set out in 8organ 9 :&); * All </ 5=&, #%s belief would have to have been honestly held (sub>ective), but not necessarily reasonable. .he SOA 2003 re6uires the belief to be both honestly held and reasonable $ob%ective& in order to escape liability.

 "ection (*) "1A *((5 further explains that: (hether a belief is reasonable is to be determined havin re ard to all the circumstances2 including any steps A has ta)en to ascertain whether ! consents. +hat steps does # have to ta2e in order to ascertain whether or not consents? The Act does not specify any particular steps that need to be ta2en, although it was made clear in the +arliamentary debates on the !ill that ' does not necessarily always have to as) # directly -'o you consent3 $t is li2ely that this provision suggests that where ' did ta)e steps to ascertain whether or not consented, these steps will be ta)en into account in assessing the reasonableness of #%s belief in consent.

 .he %ury may also consider wider circumstances, such as '-s a e2 mental capacity2 previous relationship with # or his eneral sexual experience2 or any other characteristic or circumstance that may affect #%s ability to understand the nature and conse3uences of his behaviour.

A/.0#0.1 # wishes to have sex with -. -%s ex6 boyfriend tells # that - li2es to pretend she does not consent as it increases her sexual pleasure. # penetrates -. -, who does not consent, shouts %@oA @oA @oA% but # does not withdraw. 0as # committed rape? These facts are similar to the facts of 8organ. The actus reus offence is complete 6there is penetration of the vagina without -%s consent. 0owever, ' may claim that he believed that # was consentin , because he believed that her protests were not real in the light of what her ex6boyfriend had told him. 7nder the "1A *((5, the %ury must decide whether this belief is reasonable, having regard to the circumstances and any steps ta2en by # to determine whether she consented.

 ' did not ma)e any attempt to as) # whether she consented or not2 but would this render the belief unreasonable3 7+erhaps this is unreasonable as only heard from the ex8 boyfriend2 and the fact did not show that ' is closed to #2 if this allowed that mean in the future only need to hear from ex8boyfriend advice then will be no rape9 4or an was ac6uitted under similar circumstances because he honestly believed that # was consentin 2 but this would no lon er suffice under the new le islation

Summary This section provides an overview of the 2ey actus reus and mens rea elements of the offence of assault by penetration. The actus reus of the offence is defined in s.* "1A *((5, as penetration of the relevant orifices by any part of #%s body or anything else. This must ta2e place without the victim%s consent. $n common with the other sexual offences outlined below, the mens rea essentially hinges on a lac2 of reasonable belief by the defendant that - was consenting to the sexual act. "<B46A""<""8<@T 3u<"Ti1@" o 1utline, in one sentence, the actus reus of assault by penetration. o 1utline, in one sentence, the mens rea of assault by penetration. o +hat is the difference between the actus reus of rape and the actus reus of assault by penetration? /<8$@#</ 14 B<A/@$@C 17T,18<" By this stage you should be able to: outline the sexual offence of assault by penetration and identify

the actus reus and mens rea elements of this offence distinguish between the offences of rape and assault by penetration and explain the extent to which they overlap.