Have you been accused of Rape or a Sexual Assault?
These are serious offences, and the police will either arrest you or ask you to attend a police interview on a voluntary basis. Either way, you are entitled to ask for a Solicitor to be present and represent your interests.
Asking for a Solicitor does not mean that you are guilty and please do not assume that having a solicitor present will damage your case – far from it. And don’t forget, what you say or do not say at the police station could have a real impact on how your case progresses.
So, what’s the difference between Rape and a Sexual Assault?
The legal definition of ‘rape’ is when a person intentionally penetrates another’s vagina, anus or mouth with a penis, without the other person’s consent. The allegations can stem from within a marriage or a relationship. And just because the person consented initially does not mean that they can’t withdraw that consent. A female may be guilty of rape if they assist a male perpetrator in an attack.
Assault by penetration is when a person intentionally penetrates another person’s vagina or anus with any part of the body other than a penis, or by using an object, without the person’s consent. The penetration has to be sexual.
A sexual assault is where a person intentionally touches another person sexually without their consent. The touching can be done with any part of the body or with an object. The touching must be sexual, so context is all important. It is often assumed that a sexual assault or rape requires an element of violence or threats of violence. It does not.
The issue of consent
What separates sex, or a gesture of affection, from a sexual assault?
It’s a matter of consent. That is, both people agreeing to what’s happening by choice, and having the freedom and ability to make that choice. Context again is very important, did the party alleging assault or rape have the capacity to consent, were they of an age and have the understanding to make a choice of whether to participate in the sexual activity? S.74 of the Sexual Offences Act 2003 provides the statutory definition of consent.
It is for the prosecution to prove the absence of consent or the absence of a reasonable belief held by the defendant that the complainant was consenting.
If you are charged with rape, assault by penetration, sexual assault and causing a person to engage in sexual activity, it is for the prosecution to prove an absence of consent.
Whether someone’s belief is reasonable is determined by looking at all the circumstances including what steps if any were taken by the suspect to ascertain whether the complainant consented. The test of reasonable belief is for the jury to determine whether the belief held is a reasonable one. It is not a question of whether the suspect thought it was reasonable.
There is in fact no obligation on an accused to have taken any specific steps to ascertain consent, but where steps have been taken, they must be taken into account by the jury in deciding whether the defendant’s belief was reasonable. Depending on the facts of the case, a defendant’s age, general sexual experience, sexual experience with this complainant, his learning disability and any other factor that could have affected his ability to understand the nature and consequences of his actions may be relevant.
The issue of intoxication of the complainant can be a complex one. The issue of intoxication is particularly relevant as to whether a complainant has the capacity to consent to sexual activity.
Not all allegations of sexual offences require the proof of a lack of consent. In law, a child under 13 years of age [see below] cannot consent to any form of sexual activity. Many other offences require proof of the sexual act and a requirement in law to prove the complainant’s age or the existence of a mental disorder. In such cases, consent is irrelevant.
That is why, if you are charged with a sexual offence, getting legal advice early on is essential.
Consent is different for children. In the UK, the age of consent is 16 (the legal age when people can engage in sexual activity). The law is there to protect children from abuse or exploitation, rather than to prosecute under 16’s who take part in sexual activity that everyone has agreed to.
The law says anyone under the age of 13 cannot, under any circumstances, legally give consent to any form of sexual activity.
What should I do if I am accused?
Firstly, do not panic. Help is at hand.
Secondly, if you are arrested, ask the police to contact Whiterose Blackmans Solicitors, or if you receive a call from the police asking you to attend a voluntary interview, then pick up the phone and speak to us. We are a team of award-winning lawyers that have many years’ experience in defending clients who have been accused of a sexual offence. Our aim is to provide timely expert advice, always ensuring your best interests are at the centre of any advice given.
AUTHOR
Rizwana Mahmood
Criminal Defence Solicitor
Whiterose Blackmans Solicitors LLP, Diamond House, 116 Brudenell Road, Leeds, West Yorkshire, LS6 1LS
0113 216 5507 / 07939 153564