Sexual assault allegations vary considerably – they can range from an allegation of fleeting contact over clothing to more serious allegations carrying a real risk of imprisonment. Sexual assault is sometimes investigated or prosecuted alongside allegations such as rape or coercive and controlling behaviour. A conviction can also result in sex offender notification requirements, as well as serious consequences for employment, relationships and reputation.
The central issue may be whether any touching occurred, whether the contact was intentional or sexual, or whether it was consensual. Some allegations are false or malicious and may arise following a relationship breakdown, a personal dispute or during family proceedings. Others concern events in bars, nightclubs or social settings where alcohol, incomplete recollections and differing accounts of consent require careful examination.
We are frequently instructed before any charging decision has been made. At this stage, our nationally recognised sexual offence defence team can identify and preserve possible defence evidence, examine the context and timing of the allegation, and analyse messages, CCTV and witness accounts. Where the evidence supports it, we prepare detailed representations to the police or CPS inviting them to take no further action.
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What Must the Prosecution Prove in a Sexual Assault Case?
Sexual assault is an offence under section 3 of the Sexual Offences Act 2003. To secure a conviction, the prosecution must prove that:
- the defendant intentionally touched another person
- the touching was sexual
- the other person did not consent to the touching; and
- the defendant did not reasonably believe that the other person consented.
Touching can take place through clothing and can involve any part of the body or an object. The touching does not necessarily need to involve an intimate part of the body. Conduct may be considered sexual because of the circumstances in which it occurred.
A sexual assault case may therefore involve a factual dispute about whether any touching happened, whether it was intentional, whether it was sexual or whether consent was given. Even if the other person did not consent, the prosecution must also prove that the defendant did not reasonably believe that they consented.
Defences to Sexual Assault Allegations
There are a range of possible defences to an allegation of sexual assault. The most common defence scenarios we encounter are outlined below.
Consent or reasonable belief in consent
In many cases, sexual touching is not disputed, but the defence position is that it was consensual. A separate issue is whether the person accused reasonably believed that consent had been given. That belief must have been honestly held and reasonable in the circumstances.
Messages, CCTV, witness accounts and evidence concerning the interaction before, during and after the alleged incident are often highly relevant.
False or malicious allegations
Some sexual assault allegations are false or malicious. The motivation may be connected to an acrimonious relationship breakdown or contested family proceedings.
These cases require careful examination of the timing of the complaint, changes or inconsistencies in the account and the history between those involved. The nature of the relationship after the alleged incident, including continued contact or apparently affectionate communications, may be relevant.
The contact was accidental
Sexual assault requires intentional touching. Accidental physical contact does not amount to the offence.
This issue may arise in crowded bars, nightclubs, on public transport or in other busy environments where people are moving close together. CCTV, the layout of the location and accounts from those present may help establish whether the contact was deliberate or accidental.
The touching was not sexual
Not every instance of intentional physical contact is sexual. Assumptions or misunderstandings about the nature or purpose of the contact can sometimes result in non-sexual touching being interpreted as sexual.
How We Can Help
If you have been released on bail or remain under investigation, we can provide ongoing representation while the police investigation continues. This includes communicating with the investigating officer on your behalf, obtaining updates and advising you about developments in the case. We can also represent you if the police arrange a further interview.
If your bail conditions are unnecessary or disproportionate, we can apply to have them varied. We will also consider whether to gather further defence evidence or submit detailed representations to the police or CPS inviting them to take no further action.
If the police have contacted you about a voluntary interview under caution, it should not be treated as an informal conversation. We can contact the investigating officer before the interview, obtain information about the allegation and advise you on the available interview strategies. One of our experienced criminal defence solicitors can attend the interview with you and ensure your defence is properly presented.
Frequently Asked Questions
Yes. There is a longstanding expression in law that “a drunken consent is still consent”. Drinking alcohol, even to excess, does not automatically mean that someone lacks the capacity to consent.
The question is whether the person retained the freedom and capacity to make a choice at the time of the alleged sexual contact. This principle was considered by the Court of Appeal in R v Bree.
Sexual assault is an either-way offence and can be tried in the Magistrates’ Court if the likely sentence is within the magistrates’ sentencing powers. Even if the magistrates accept jurisdiction, the defendant has the right to elect trial in the Crown Court.
Allocation is highly fact-dependent. However, cases involving the touching of naked genitalia or vulnerable complainants are rarely heard in the Magistrates’ Court.
A conviction for sexual assault does not automatically result in sex offender notification requirements in every case. For an adult, the requirements generally apply if the sentence includes imprisonment, a hospital order or a community order lasting at least 12 months.
The length of time spent on the register depends on the sentence imposed. This is an important consequence to consider before entering any plea.
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