Sexual Assault (s.3 Sexual Offences Act 2003)
Being accused of a sexual assault can be both a surreal and horrible experience. Most clients have never had any real contact with the police or courts before, and the stigma associated with these offences can make life at home very stressful. The situation can be made worse if social services become involved, and police sometimes take a one sided view from the outset.
Sexual Assault - The Law
Sexual assault is covered by section 3 of the Sexual Offences Act 2003. It means touching another person sexually. It can be touching of any part of the body, and with any part of the body. It can also be through clothes. The person being touched has to not consent to the touching for it to be considered sexual assault.
Consent and the defendant's belief in consent
If the jury are going to find the defendant guilty, they have to be persuaded that he or she did not believe that the person making the complaint consented to the touching. If the person making the complaint did not consent to the touching, then the defendant may have a defence if he or she believed that the person did consent, but this belief would have to be reasonable. In a situation where it might be difficult to know in hindsight whether the person had consented, the jury would be advised by the judge to look at all the circumstances of what was said or done, including whether the defendant took steps to find out whether the other person was consenting, as bizarre as that may sound. The belief in consent must also be reasonable. This means that from the outside looking in, it would be likely that an observer would share the same view that the person was consenting.
Someone who freezes in shock may still not be consenting to being touched, even if that person doesn't put up a fight, physically or verbally. There needn't be actual violence for the jury to decide that the touching was a sexual assault.
The main point the jury consider when deciding if the person consented is whether that person freely agreed. This will take into account any vulnerabilities such as age or drunkenness. If the person was being threatened, drugged, unconscious or incapable of communicating because of a disability, then a court will start from the standpoint that there was no consent for the touching.
Touching which is accidental is not an offence, even if the person touching was drunk.
Strategy in cases of sexual assault
There is no set strategy that applies to every sexual assault case, but there are some things that a person being investigated or prosecuted would be wise to become aware of.
The Interview and the need for legal advice
There are a number of choices that are open to someone accused of a criminal offence, and sadly many people who have not been in trouble with police before usually choose badly. The first decision is whether to have a specialist sexual assault solicitor. An innocent person will generally take the view that a solicitor is unnecessary because he or she has nothing to hide. This is a mistake. The police interview and custody process is designed to place the person being interviewed at a psychological disadvantage. Information will be held back until it is sprung on the person at the end of the interview without notice, in such a way as to twist the meaning of, or discredit the account given to the officers in good faith. This is why it is always essential to have advice from a sexual assault solicitor. Even opting for free legal advice is better than going in alone.
The second choice the person has at the police station is what to do in the interview. While the first reflex response is often to be as cooperative as possible with the police, it is important to remember that the police often don't come to the interview with an open mind. Their opinion is often formed before they have even met the suspect, and their goal is to gather evidence to convict, not to get to the truth. The advice from a properly experienced sexual assault solicitor is often to only make a comment in the form of a prepared statement, or if there is outstanding forensic evidence which is still to be analysed, making no comment until the evidence is available is often the wisest choice. It is for the prosecution to prove its case. The client shouldn't feel as if he is under a duty to help the state, especially if the police are not playing fair.
The background of the complainant
In any case where the success of the defence case could rest on the discrediting of the word of a complainant, the more that is known about that complainant the better. Requesting social services records, details of previous allegations made to police, school records, or any other evidence held by agencies who may have relevant information are all basic steps that the legal team should consider. A jury may have difficulty believing an allegation is false unless they are given the full picture. The reality is that a lot of dysfunctionality can sometimes be present in these cases, and the jury are entitled to know about it if this is the case.
Character of defendant
In a case where somebody has been charged with sexual assault, one unusual aspect of the case can be that the person often has no previous convictions. The good name and reputation of the client is at risk in criminal proceedings, and this is especially true with sexual allegations. In these cases, it is ironically the client's fragile good name which has to be used as a shield to defend him or her with. This means character reference letters and also live character witnesses, and plenty of them. Just hoping that the prosecution make a mistake and the performance of the client in the witness box is strong on the day is not enough. The sexual assault solicitor should build a positive picture of the client's character, by bringing people to court who can comment on it in a way that makes a strong impression, making the prosecution allegations seem more and more illogical.
Forensic evidence and defence experts
Forensic evidence is often a part of sexual assault cases. This can take the form of DNA, fingerprint evidence, or medical examination of the alleged victim. It may prove to be powerful evidence of contact with the alleged victim, or of the nature of that contact, but should never be taken at face value. The sexual assault solicitors should look critically at any evidence which harms the case of the client and decide whether it is as strong as the prosecution suggest. The use of expert witnesses for the defence should be considered, and it may be a good idea for second opinions to be obtained if the first agrees with the prosecution.
Choice of advocate and style of cross examination
The advocate or barrister speaks the case in court after the sexual assault solicitor has prepared the case. A certain type of experience and approach is required from the advocate in a sexual assault case. The jury will often start out with a sympathetic attitude to the alleged victim in the case, and the sexual assault solicitor or the advocate taking an aggressive approach, is more likely to anger the jury than help the client's case. The ‘A Few Good Men' method of screaming at the defendant until they break down in tears or confess the truth is never going to be effective as a way of cross-examining in a sexual assault case, and the judge may stop it from happening anyway.
Procedure and sentence for Sexual Assault Cases
Sexual assault cases can be dealt with in both the Magistrates' Court and the Crown Court, but very few cases will in practice be dealt with in the lower court.
If the defendant is convicted, sentences can vary widely from a non-custodial sentence to a lengthy period of imprisonment. A number of factors will be taken into account by any sentencing judge, including the vulnerability of the complainant, the age difference, the number of incidents, the severity of the assault itself, the effect on the victim and whether the defendant was in a position of trust. Where the offending took place a long time ago and the defendant had shown serious remorse or led an exemplary life since, this should also be taken into account.
The maximum sentence for sexual assault is ten years' imprisonment. Sentences of this length are usually reserved for prolific offenders. In some cases prison isn't inevitable. This might be where there has been a single assault, and the features listed in the paragraph above such as the victim being vulnerable or other aspects making the offence more serious are not present. This is why having an experienced sexual assault solicitor can make such a difference.