Sexual Offences

This area of law is tough on everyone, from the alleged victims to those accused of such crimes. At Mary Monson Solicitors we understand this and the enormous stress it puts on the lives of people and their families. We have great experience in dealing with this area.

The main offences

Rape is the penetration by a man of the vagina, anus or mouth of another with his penis, without consent. Therefore only a man can be charged with rape.

Assault by penetration is the penetration of the vagina or anus of another without consent. The penetration must be sexual.

Sexual assault is intentionally touching another person in a way that is sexual, without consent.

Something is ‘sexual’ if the reasonable, average normal person would consider it so.

Grooming

Grooming is a new offence. It is charged when someone has been meeting or communicating with someone under 16 and they then go to meet them in order to carry out an offence, such as sexual intercourse. The offence does not have to actually be carried out; travelling and intending to do something is enough. The police often run sting operations posing as under 16 year olds on chat rooms.

Child Pornography

It is illegal to make, to distribute or to possess indecent photos of children.  This includes pseudo photographs (e.g. electronically cutting the head off a photo of a child and sticking it onto the body of an adult, or digitally changing a photo of an adult’s genitalia to make it look more childlike).

Presumption of non consent

There are circumstances when the court will presume that consent did not exist and this applies to charges for rape, assault by penetration and sexual assault. It is then up to the defendant to show that it, in fact, did. Such circumstances are:

• if violence has been used against the victim or another person,
• if the victim has been held captive,
• if the victim was unconscious,
• if the victim was physically disabled,
• if the victim was under the influence of a substance that overpowered them.

The consumption of alcohol is always a tricky issue. It does not straight away mean that consent does not exist. Drunken consent can still be consent. However massive consumption of alcohol could lead to unconsciousness in someone and the prosecution might claim a presumption of non consent on this ground. We would seek to investigate this and scrutinise the circumstances. We can get evidence including CCTV and expert forensic statements.

Defences

Consent is the main defence for rape, assault by penetration and sexual assault. Someone is said to have consented if they agree by choice and have the freedom and capacity to make that choice.

Nevertheless, if consent did not in fact exist there can still a defence of having a “reasonable belief” in consent. This means that someone must honestly believe that consent exists and this belief must be one that a normal person on the street would hold.

There are a range of potential defences for possessing indecent photos of children. They include having a legitimate reason for possessing them, not having seen the photos, or they were sent to you unknowingly and not kept long. Therefore this covers situations such as being sent indecent photos in an email attachment, looking at them and deleting them. Possessing images for work purposes may also be a defence.

Because most images are made and distributed electronically, computer evidence is vital. We have connections with first rate, well respected computer experts who can analyse a computer and provide evidence to support your case.

Sentencing

Rape and assault by penetration are very serious crimes and as such are dealt with only in the Crown Courts. There can be a potential life sentence for both. The starting point however for rape is 5 years imprisonment. Particular features of a crime can affect this and increase or decrease the sentence. The starting point for assault by penetration can be around 4 years.

Sexual assault and grooming can be dealt with by the Magistrates’ Court or the Crown Courts. There is a maximum 10 year sentence for both in the Crown Court.

Sentencing for child pornography depends on the number and content of the photos. There are 5 categories ranging from images of erotic posing (which has a lower sentence) to sadism or bestiality (which has a higher sentence).

The Sex Offenders Register

Signing the Sex Offenders’ Register is an automatic consequence of conviction for some sexual offences, including all the ones mentioned above. The length of time a name is kept on the register depends upon the sentence and can be 5, 7, 10 years or an indefinite period.

Double jeopardy

In general once found not guilty of an offence, you cannot be tried again for the same crime. However legislation has been enacted giving the court power to overturn a not guilty verdict and order a retrial for certain crimes. There are twelve sexual offences that can be retried and these include rape and assault by penetration. There must be new and compelling evidence and this might be when new technology reveals fresh DNA evidence.

If you would like to speak to one of our criminal solicitors regarding sexual offences, please contact us on freephone 0808 155 4870 and ask to speak to a criminal defence lawyer in our London, Manchester, Salford or Birmingham offices.