Something has happened to me. Is it a criminal offence?
This section explains a number of sexual offences. The sexual offences are: rape, assault by penetration, sexual assault, causing a person to engage in sexual activity without consent. It also provides information on where you can get more help if you have experienced sexual violence, whether it was recently or a long time ago.
When, where, and to who did the offence happen?
Offences committed in England and Wales
For offences committed in England and Wales, skip to section called ‘When the offence took place’.
Offences committed in Scotland or Northern Ireland
The information in this guide is based on the Sexual Offences Act 2003 which deals with offences that have taken place in England and Wales.
Similar (but different) legislation deals with Scotland and Northern Ireland. If you experienced sexual violence in Scotland or Northern Ireland, unfortunately the information in this guide is unlikely to apply to your situation.
For support in Scotland you can contact Rape Crisis Scotland; in Northern Ireland, you can contact Rape Crisis Ireland.
Offences committed outside the UK
The information in this guide relates to offences that have taken place in England and Wales. If you have experienced sexual violence outside of England and Wales then this guide may not apply to you. If possible, you should seek legal advice on your situation.
Sexual violence that has occurred outside of the UK cannot usually be investigated and prosecuted in the UK. This means you may need to report it to the police or authorities in the country where the violence happened.
If you usually live in the UK but have been raped or sexually assaulted in another country and are still there, you can contact the nearest British embassy for support. In some countries this might also be called the British High Commission or British Consulate.
You can also call the Foreign, Commonwealth & Development Office in London on 0044 (0)20 7008 5000. You can also read the government’s information and advice on what to do if you are assaulted abroad.
After Midnight on the 1st May 2004
For offences committed after midnight on 1st May 2004, skip to section called ‘Age of the victim at the time of the offence’.
Before midnight on the 1st May 2004
The current law on sexual violence will not apply to your situation.
This guide covers the existing law only.
If you do not know when the incident happened, and it cannot be proved that it occurred either before or after midnight on 1 May 2004 then the perpetrator may still be convicted of an offence.
For more information on the law which applied before 1 May 2004 you can contact our criminal law advice line.
For details of where you can get further support click here.
Under 13 years old
Children aged under 13 are not able to consent to sexual activity. This is the case even if she expressed consent or believes that she is able to decide whether or not to consent to sexual activity.
This guide does not cover offences against children under 13 or child sex offences. For support you can contact the NSPCC on 0808 800 5000 or the National Association of People Abused in Childhood.
13-15 years old
The law says that sex by and with children aged 13, 14 and 15 is illegal. Whether someone who has sex with a 13, 14 or 15 year old will be charged with a crime will depend on the circumstances and on whether the 13, 14 or 15 year old gave consent. Children aged 13, 14 and 15 are considered more able to give consent than those under 13. However, even if the child consents it is an offence for a person aged 18 or over to engage in sexual activity with a person under the age of 16 (unless that person has a reasonable belief that the person concerned was 16 years old or over).
There are also a number of additional child sex offences in the Sexual Offences Act 2003 relevant to children aged under 16. This guide does not cover child sex offences. For further information see our guide Understand, identify, intervene: Support young people in relation to peer-on-peer abuse, domestic and sexual violence.
16 years and over
The information in this guide applies where the victim is aged over 18.
While it applies to those aged 16 or 17, it focuses on adult survivors of sexual violence.
There are additional protections available for survivors of sexual violence who are under 18. For further information, see our guide Understand, identify, intervene: Support young people in relation to peer-on-peer abuse, domestic and sexual violence.
Sexual behavior and consent
Sexual intercourse is an act that is sexual by its very nature. However, some actions, such as penetration or touching, are not always sexual by its nature. For example, touching a part of someone’s body through clothes may or may not be sexual. This will depend on:
- the circumstances in which the sexual activity occurred (for example, where the touching occurred, what was touched and with what), and/or
- any person’s, such as the defendant’s, purpose
What makes the activity sexual is the intention of the person doing the particular act and/or the circumstances in which the act was carried out.
For example, a defendant touching a woman’s breasts for his sexual gratification would be considered sexual, while touching a woman’s breasts for the purpose of carrying out a necessary medical examination would not.
If the behaviour you are concerned about is not sexual but still done without your consent it may, depending on the circumstances, be a different criminal offence such as common assault.
The four offences discussed in this section are non-consensual sexual offences. This means that they are offences because the complainant did not consent to the sexual activity concerned.
Consent can be shown or given in different ways. It can be expressed, through a statement that a person wishes to engage in sexual activity. It can also be implied by conduct, through something you said or did at the time.
Consent may be given for a specific act but not others. For example, a woman may consent to sexual touching but not to penetration.
You can withdraw your consent to sexual activity at any time before or during a sexual act.
Consent has to be given for every sexual activity each time it occurs. Just because a person consented to a type of sexual activity in the past this does not mean she consents every time.
The law says:
a person consents if (s)he agrees by choice and has the freedom and capacity to make that choice.”
Section 74 Sexual Offences Act 2003
This means consent has two parts: the freedom to choose to enter into sexual activity and the capacity to choose.
Having the freedom to choose means being able to make a real choice about whether to engage in a sexual activity or not.
Certain things can impact a person’s freedom to consent.
Position of power
The defendant is in a position of power where they can abuse their position of trust or status. For example, a family member, teacher, religious leader, employer, gang member, carer or doctor.
Domestic violence
The defendant is a partner or family member that uses force or power to remove the complainant’s freedom to consent.
Age
The complainant is too young to consent or the defendant is significantly older than the complainant.
Dependance
The complainant is dependent on the defendant financially or for care.
Threats of violence or detainment
Violence or threats are used against the complainant or they are detained against their will. Whether or not a particular threat is capable of preventing a person from being able to choose will depend on several factors, including their age and personal circumstances, as well as whether it is likely the particular threat would be carried out.
Having the capacity to choose refers to the ability a person has to make a particular choice. Capacity is not defined in the law. However, previous cases that have gone to court tell us that a person will lack capacity to consent if she has no understanding of what is involved or has such limited knowledge or understanding that she is not able to decide whether or not to agree. Certain factors can affect a person’s capacity to consent.
Alcohol or drugs
Being under the influence of alcohol or drugs may affect a person’s capacity to consent. The fact that a person has taken drugs or consumed alcohol does not automatically mean they cannot consent. It will depend on the effect the substance has had on the individual’s understanding and ability to make a decision at the time the sexual activity took place.
Disability and mental illness
There is a specific offence of sexual activity with a person with a mental disorder impeding choice. However, the effect of a mental disorder (such as a mental illness, learning difficulty or learning disability) must be considerable before it would result in a person being considered unable to choose whether or not to engage in sexual activity.
Unconciousness
If a person is asleep or unconscious when the sexual activity occurs, then there is a presumption that that they did not consent to it. A presumption is something that us assumed to be true.
A defendant can argue that they reasonably believed the complainant was consenting.
A defendant will not have a reasonable belief in consent if:
- They knows or believes that the complainant has not consented
- They are reckless (do not care or are indifferent to) whether or not the complainant has consented.
Even if the complainant can show they were not consenting, if the defendant reasonably believed they were then they have not committed an offence.
The question as to whether the defendant’s belief was reasonable has to be answered by looking at all the circumstances of the case, including what they did to make sure the complainant was consenting. For example, they could not argue that they believed in the complainant’s consent solely because of the way they were dressed because this could not reasonably affect the defendant’s belief (or lack of belief) in consent.
The law outlines certain situations where it will be harder or impossible for the defendant to argue that the complainant consented to the activity and that they reasonably believed that they consented. These situations are known as presumptions (things that are presumed to be true).
There are two sets of presumptions: conclusive and evidential.
The law says that there are circumstances which make it impossible for the defendant to argue that the complainant consented or that he reasonably believed in her consent:
- when the defendant intentionally deceives the complainant into thinking that his actions have another purpose (for example, a medical examination)
or
- when the defendant intentionally pretends to be someone the complainant knows, such as her partner, to engage in sexual activity with her
If either of these situations are proved at trial, then the complainant will be taken not to have consented to the sexual activity and the defendant will be taken not to have reasonably believed in her consent.
As these are ‘conclusive’ presumptions. Once they are proved, the defendant will be found guilty of the offence.
The law says that there are some circumstances which may lead to the presumption that the complainant did not consent to sexual activity:
- Where the defendant was, at the time of the relevant act or immediately before, using violence against the complainant or causing them to fear that immediate violence would be used against them
- Where the defendant was, at the time of the relevant act or immediately before, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person
- The complainant was, and the defendant was not, unlawfully detained
- The complainant was asleep or otherwise unconscious at the time of the relevant act
- Where the complainant would not have been able to communicate to the defendant whether or not they consented to the sexual activity because of their physical disability,
- Any person (the defendant or someone else) had given the complainant or caused them to take a substance without their consent, which made them stupefied or overpowered at the time of the relevant act
In all these situations the defendant ‘can rebut’ the evidential presumption. This means try and disprove it. If he can produce enough evidence to persuade the judge then the presumption will not apply, and a jury will decide whether there was consent.
If the judge is not persuaded, it will be presumed that the complainant did not consent, and that the defendant did not reasonably believe that they were consenting. The jury will not be asked to decide whether there was consent.
Example
Jo had been in a relationship with Mark for several years and they have two children together. During the relationship Mark has been violent to Jo and has recently told her that he would also punish their children for her disobedience. One evening, after an argument during which Mark had punched and slapped Jo, Mark told her that he wanted to have sex with her to show that they had “made up with each other”. Mark told Jo that if she did not have sex with him he would wake the children up and “punish them as he had just punished her”. Jo then had sex with Mark and reported the incident to the police the next day.
At the subsequent trial for rape, once the allegations about the violence and the threats are proved, then the presumption that Jo did not consent may apply because violence was used against her before the act. Mark also caused her to believe that violence would be used against other people (their children). If Mark wants to argue that Jo consented to the sexual intercourse he must produce enough evidence to persuade the judge that the question of whether or not Jo consented should be decided by the jury. If the Judge decides that Mark has provided enough evidence, then the jury will have to decide whether or not Jo consented to the sexual intercourse and whether Mark reasonably believed in her consent. If the Judge decides that Mark has not produced sufficient evidence they will instruct the jury that Jo did not consent to the sexual intercourse and that Mark did not reasonably believe in her consent. Mark can then only argue in his defence that no sexual intercourse occurred or that, if it did, he was not the perpetrator.
Types of sexual offences
To explain the offence of rape, we are calling the defendant (the abuser) ‘A’ and the complainant (the victim) ‘B’.
‘A’ is guilty of rape if:
- ‘A’ intentionally penetrates the vagina, anus or mouth of ‘B’ with his penis, and
- ‘B’ does not consent to the penetration, and
- ‘A’ does not reasonably believe that ‘B’ consents
The penetration must be with a penis for the offence of rape.
If the penetration is with something other than a penis then the offence is assault by penetration.
Penetration is the entry of the vagina, anus or mouth with the penis, and penetration ends when it is withdrawn.
Penetration is a continuing act – so if a man penetrates a woman with her consent, but then she withdraws her consent, his continuing penetration will be rape. The slightest amount of penetration is enough for an offence to have been committed. Ejaculation is not necessary.
You do not need to have physical evidence that shows that sexual intercourse took place, or evidence of injuries to show that you did not consent. Your account to the police and in court is evidence of what happened. However, any medical evidence that supports your account is useful.
For more information on what you can do if you have been raped see the next page: I think a sexual offence has been committed against me. What are my options?
This offence covers situations where the complainant is penetrated with objects or parts of the body other than the penis.
To explain the offence, we are calling the defendant (the abuser) ‘A’ and the complainant (the victim) ‘B’.
‘A’, is guilty of assault by penetration if:
- ‘A’ intentionally penetrates the vagina or anus of ‘B’ with a part of his body or anything else and
- The penetration is sexual and
- ‘B’ does not consent to the penetration and
- ‘A’ does not reasonably believe that ‘B’ consents
The penetration may be by a part of the defendant’s body (his finger or tongue) or with an object (such as a vibrator or bottle).
A defendant can be tried for assault by penetration in circumstances where the complainant does not know what she was penetrated with, as the offence can be committed with any object.
If the penetration is with the defendant’s penis then this is rape rather than assault by penetration.
Penetration of the mouth is not included in this offence. However, sexual penetration of a woman’s mouth (for example, with the defendant’s tongue) would be considered sexual assault.
You do not need to have physical evidence that shows that the penetration took place, or evidence of injuries to show that you did not consent. Your account to the police and in court is evidence of what happened. However, any medical evidence that supports your account is useful.
For information on what you can do if you have been assaulted see the next page: I think a sexual offence has been committed against me. What are my options?
To explain the offence, we are calling the defendant (the abuser) ‘A’ and the complainant (the victim) ‘B’.
‘A’ is guilty of causing someone to engage in sexual activity if:
- ‘A’ intentionally causes ‘B’ to engage in an activity and
- the activity is sexual and
- ‘B’ does not consent to engaging in the activity and
- ‘A’ does not reasonably believe that ‘B’ consents
The offence of causing someone to engage in sexual activity covers situations where the defendant causes you to engage in sexual activity alone (for example, by forcing you to masturbate) or with a third person.
The defendant does not have to touch you for an offence to be committed.
A person may be caused to engage in sexual activity because violence is used against her or because she is threatened with something else, such as harm to others or loss of a job. This is sometimes called coercion.
Tricking someone may also amount to “causing”, provided there is some action by the defendant that results in another person engaging in sexual activity.
Examples of causing someone to engage in sexual activity without consent:
- Where a woman forces her partner to touch herself sexually where she does not consent, and the defendant does not reasonably believe she consents.
- Where a man forces his partner to penetrate herself using a vibrator where she does not consent, and he does not reasonably believe she consents.
- Where a man forces a woman to have sex with a third person (regardless of whether this is for his sexual gratification or for another reason, such as financial gain) where she does not consent, and he does not reasonably believe she consents.
- Where a man forces a woman to perform oral sex on a third person where she does not consent, and he does not reasonably believe she consents.
For information on what you can do, see our next chapter:I think a sexual offence has been committed against me. What are my options?
If you are in immediate danger, need support right away and/or the abuser is nearby then please call 999. You can also go to your local A&E department.
If you want to make a report to the police but it is not an emergency, then you can call 101.
If you are looking for someone to talk to, click here for details of support in your area.
You can also contact Rape Crisis. Rape Crisis provides confidential emotional support and information to women who have experienced sexual violence and abuse at any time.
For information on what you can do if you are the victim of a sexual offence see the next page: I think a sexual offence has been committed against me. What are my options?
The next section of From Report to Court provides information about what you can do if you have experienced sexual violence, whether it was recently or a long time ago. It explains your options around seeking medical treatment, reporting to the police, preserving evidence and getting support.