Knowing the difference between sexual assault and rape can be the first step in understanding exactly what is being alleged against you. The Sexual Offences Act 2003 provides various sexual offences, all with individual definitions and offence elements which are required to be proven to convict you.
Sexual offence allegations are serious with life-changing consequences, and many people seek advice from specialist sexual defence lawyers as soon as they become aware of a police investigation.
This article explains the legal difference between rape and sexual assault under the Sexual Offences Act 2003, and why early advice from an experienced sexual offence lawyer can make a critical difference.
Sexual Offences Act 2003 – The Law in England and Wales
All sexual offence cases in England and Wales are governed by the Sexual Offences Act 2003.
Police forces and the Crown Prosecution Service (CPS) must consider the offences and their definitions when investigating and charging a suspect of a sexual offence allegation. It is therefore important that the accused also understands exactly what they are being accused of, by understanding the alleged offence you are taking the first crucial step to defending yourself.
What Is Rape Under UK Law?
Rape is defined under section 1 of the Sexual Offences Act 2003, there is also an offence under section 5 of the Sexual Offences Act 2003 which specifically relates to offences of rape against a child under the age of 13 years old.
To prove rape contrary to section 1 of the Sexual Offences Act, the prosecution must show that:
- There was intentional penetration
- The penetration was with a penis
- The penetration was of the vagina, anus, or mouth
- The complainant did not consent
- The accused did not reasonably believe there was consent
To prove rape contrary to section 5 of the Sexual Offences Act, the prosecution must show that:
- A person intentionally penetrates the vagina, anus or mouth of a person
- The person is under 13 years old
Key Legal Points
- Only someone with a penis can be charged with rape
- Digital or object penetration is charged as a separate offence
- Consent and reasonable belief in consent are often the main issues, unless the alleged offence involves a child
- Rape carries a maximum sentence of life imprisonment
Rape investigations often involve mobile phone analysis, forensic evidence, CCTV enquiries, statement taking from the accuser, disclosure witnesses and relevant third parties, interview of the accused and any enquiries raised by them or their defence team.
Rape investigations can take many months, sometimes years – at Eventum Legal we act for clients throughout the investigation so they know exactly where they stand and what is going on, we refer to this as pre-charge representation.
What Is Sexual Assault?
Sexual assault is defined under section 3 of the Sexual Offences Act 2003, and Sexual assault of a child under 13 contrary to section 7 of the Sexual Offences Act.
A person may be charged with sexual assault (section 3) if the CPS believe that there is a reasonable prospect of conviction, and the evidence supports that the accused has:
- Intentionally touched another person
- The touching is sexual
- The other person did not consent
- There was no reasonable belief in consent
If the sexual assault is alleged by a child under 13 then all elements apply but for consent, the prosecution do not need to prove whether a child consented or not to the touching, consent is irrelevant in these types of cases.
Important Differences from Rape
- Sexual assault does not involve penetration
- It can include touching over or under clothing
- Anyone can be accused, regardless of gender
- The maximum sentence is 10 years’ imprisonment
Sexual assault allegations vary widely and not one case is the same, making it extremely important that a specialist approach is taken, and time is dedicated to you and the individual circumstances of your case.
Consent – The Central Issue in Most Sexual Offence Cases
In both rape and sexual assault cases, consent is often the decisive factor, especially where the cases relate to adults.
Consent in law exists where an is made agreement by choice, and the person making the agreement is doing so with the freedom and capacity to make that choice.
When deciding whether a person has consented the courts will consider:
- What was said or done at the time
- Whether consent was withdrawn at any point
- Was alcohol or drug use involved which may have impacted a person’s capacity to consent
- Pressure, fear, or power imbalance
- Whether the belief in consent was reasonable
A specialist sexual defence lawyer can analyse how consent is likely to be interpreted in your specific case, and the legal arguments and implications which may be advanced to assist your defence of consent.
Being Investigated for a Sexual Offence Does Not Mean You Will Be Charged
An allegation is not a conviction, although being arrested brings its own challenges and can have the potential to impact your life immediately, there are steps you can take at this early stage to limit reputational damage, and the effects of a false allegations.
Not all allegations result in charges, engaging with specialist sexual offence lawyers who act for you at the pre-charge stage if your case gives you the best possible chance of avoiding charges. Early legal advice can influence police interviews, investigative lines of inquiry, disclosure decisions and charging outcomes.
Frequently Asked Questions
What is the difference between rape and sexual assault in the UK?
Rape involves penile penetration without consent. Sexual assault involves non-penetrative sexual touching without consent.
Will I go to prison for Rape?
Prison is a very likely outcome for adults accused and convicted of rape. Obtaining the correct support and legal advice is crucial to ensure your case is conducted with the sensitivity and robustness required.
Should I use a specialist sexual offence lawyer?
Yes. At Eventum Legal our team specialise in domestic and sexual abuse cases only, making our team dedicated to providing the highest level of legal advice and protection to our clients falsely accused of such serious offending.
Do I need a lawyer even if I haven’t been charged?
Yes. Early advice during a police investigation is often crucial. At Eventum Legal our team are instructed at the pre-charge stage of many cases and often achieve no further action results. The benefit of early involvement from specialist lawyers is that we can take a pragmatic view of your case, predict legal issues for the prosecution and undermine and challenge the credibility of any evidence with a view to prevent court proceedings.