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Assault by penetration - Sexual Offences Act 2003
Terms in this set (4)
s.2 - Assault by penetration
A person (A) commits an offence if he or she intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else and the penetration is sexual,
'B' does not consent to the penetration and
'A' does not reasonably believe that 'B' consents.
Points to prove
This offence can be committed by a male or female against a male or female.
The offence is committed where the penetration is by part of the body (for example, a finger) or anything else, (for example, a bottle or vibrator); where the penetration is sexual, so that it excludes, for example, intimate searches and medical procedures; where the other person does not consent to the penetration; and where the offender does not reasonably believe that the other person consents.
Intentionally - Mens Rea (motivated solely to provide sexual pleasure and not injury)
Penetration - is a continuing act from entry to withdrawal.
Part of the body - References to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery).
Vagina - includes vulva .
Sexual is covered on next slide
Reasonable belief, and consent are the same as Section 1 Rape.
Statutory presumptions apply, evidential and conclusive
Penetration, touching or any other activity is sexual if a reasonable person would consider that:
Whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual
Because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
Test: 2 parts to sexual
Paragraph (a) covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse, oral sex, masturbation.
Paragraph (b) covers activity that the reasonable person would consider, because of its nature, may or may not be sexual depending on the circumstances or the intentions of the person carrying it out, or both: for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason.
The reasonable person (Court) would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (e.g. a doctor's surgery) and the purpose of any of the participants (if the doctor's purpose is medical, the activity will not be sexual; if the doctor's purpose is sexual, the activity also is likely to be sexual).
If, from looking at the nature of the activity, it would not appear to the reasonable person that the activity might be sexual, the activity does not meet the test in either paragraph (a) or (b), even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes which do not seem sexually relevant to a reasonable person (e.g removing a woman's shoe) do not fall within the definition of sexual activity.
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