Offences involving a Child under 13 requires the prosecution to prove that the defendant intentionally touches the other person, the touching is sexual, and the other person is under 13. It is very simple to state but the area of law can be as difficult as it is serious.
Elements of the offence of sexual assault of a child under 13 by penetration means:
- the defendant intentionally penetrates the vagina or anus of another person with a part of his body or anything else:
- the penetration is sexual, and
- the other person is under 13
There is an alternative verdict available of the lesser offence of sexual assault.
The elements of the offence of causing or inciting a child under 13 to engage in sexual activity involve:
- the defendant intentionally causes or incites another person to engage in an activity
- the activity is sexual, and
- the other person is under 13
Rape of a child under 13 is a specific offence provided by SOA 2003, s5. There is no defence of consent to the charge and the offence can be committed in a wide variety of circumstances.
Sentencing adults for sexual assault of a child under 13 under the SOA 2003
The maximum penalty following conviction for sexual assault of a child in the Crown Court is 14 years’ imprisonment. Following summary conviction six months’ imprisonment or a fine not exceeding the statutory maximum or both. As from a day to be appointed the Criminal Justice Act 2003 (CJA 2003), this will increase the summary maximum to 12 months’ imprisonment.
There is a notification requirement if the offender was 18 or over or was sentenced to at least 12 months’ imprisonment. Also a defendant convicted of sexual assault may be liable to:
•a Sexual Offences Prevention Order, and
•disqualification from working with children (if a child was involved). (AG’s reference (No. 29 of 2008) [2009] 1 Cr. App. R. 515)
The Sentencing Council’s guidelines apply.
The effect on the victim is a considerable factor in sentence. The sentencing guidelines provide the following sentencing ranges:
•contact between the naked genitalia of the offender and the naked genitalia, face or mouth of the victim (four-eight years custody)
•contact between the naked genitalia of the offender and another part of the victim’s body ( one-four years custody), and
•contact between part of the offender’s body (other than the genitalia) with part of the victim’s body (other than the genitalia) (four weeks-18 months custody)
Sentence for assault of a child under 13 by penetration. The maximum penalty for this indictable only offence is life imprisonment. Automatic notification requirements will apply. Sentences for public protection will always to be considered. The case of R v Corran must now be read subject to the Sentencing Council’s guidelines.
The Sentencing Council’s guidelines provides sentencing ranges:
•penetration with an object/body part together with one of the following: abduction or detention; more than one offender acting together; abuse of trust; offence motivated by prejudice (11-17 years custody)
•penetration with an object (five-ten years custody), and
•penetration with a body part (fingers, toes, tongue) where no physical harm to victim (four-eight years custody)
Aggravating and mitigating features apply.
Sentence for rape of child under 13
The maximum penalty for this offence is life imprisonment.
The Sentencing Council’s guideline on SOA 2003 provides that, in cases involving victims under 13, the presence of consent may be material in relation to the sentence, particularly in relation to a young offender where there is close proximity in age between the victim and offender or where the mental capacity or maturity of the offender is impaired.
Before the guideline was published, guidance was given by the Court of Appeal in R v Corran and others. In that case the court said that there would be very few cases in which immediate custody was not called for because the purpose of the legislation was to protect children under 13. However, the presence of consent was material in relation to the sentence.
In A-G’s Ref 11 and 12 of 2012 [2012] EWCA Crim 1119, the Court of Appeal emphasised that the purpose of SOA 2003, s 5 was to render immaterial to criminal responsibility, for the rape of a person under the age of 13, the actual or ostensible consent of the victim. However, s 5 embraced a wide range of seriousness and there were a number of considerations for the sentencing judge.
These include:
•the circumstances of the offence (a Newton hearing may be necessary when the claim is made that the victim was consenting and or that the offender believed the victim to be significantly older than her actual age)
•there is a strong element of deterrence in sentencing defendants for sexual offences committed against young children, who are vulnerable to exploitation and require protection
•exploitative sexual behaviour towards a child under 13 may be just as serious as submission obtained by the use or threat of force
•the culpability of the offender is measured by his own understanding of the harm he was causing or was likely to cause and the younger the victim, the more serious is the harm likely to result and the more likely the offender to be culpable.
Sentence for causing or inciting a person under 13 to engage in sexual activity without consent.
The maximum penalty following conviction for an offence of causing a person to engage in sexual activity without consent which does not involve penetration is ten years imprisonment. Where the offence does include penetration the sentence is life imprisonment.
The Sentencing Council’s guidelines provides the following ranges:
•penetration together with any one of the following: abduction or detention; the offender is aware that he/she is suffering from a sexually transmitted infection; more than one offender acting together; abuse of trust; offence motivated by prejudice; sustained attack (11-17 years custody)
•single penetration by a single perpetrator with no aggravating or mitigating features five-ten years’ custody)
•contact between the naked genitalia of the offender and the naked genitalia of the victim, or causing two or more victims to engage in such activity with each other (one-four years’ custody), and
•contact between part of the offender’s body (other than their genitalia) with a part of the victim’s body (other than their genitalia) (four weeks–18 months’ custody)
Aggravating and mitigating features apply.
Sentence for indecent assault on a man; indecent assault on a woman
Indictment on a Woman Maximum: two years’ imprisonment or five years if the complainant is a girl under 13 and that fact was averred.
Ten years’ imprisonment after 16 September 1985 (regardless of age if complainant); summarily: six months’ imprisonment.
Indictment on a Man/boy Maximum: November 1 1957 up until April 30 2004 — ten years imprisonment: summarily: six months.
The maximum penalty following conviction in the Crown Court for an indecent assault on a woman is two years imprisonment or five years after 1 January 1961, if the complainant is a girl under 13 and that fact was averred; ten years imprisonment after 16 September 1985 (regardless of age of complainant).
Following summary conviction in the magistrates’ court the maximum penalty is six months imprisonment.
The maximum penalty following conviction in the Crown Court for an indecent assault on a man between November 1 1957 up until April 30 2004 is 10 years imprisonment. Following summary conviction in the magistrates’ court the maximum penalty is six months.
The Sentencing Council’s guidelines do not apply but common law sentencing guidelines give starting points, after a trial.
There is often little reduction for the age of a defendant in historic cases.