Sexual touching: criteria and penalties

Sexual touching, known as ‘sexual assault by touching’ under UK law, can be a complex offence split into two categories dependent upon whether the victim was over or under the age of 13 at the time of the offence. Offences of this nature were in the past referred to as indecent assault or sexual assault.

In order to prove sexual assault by touching, the following four criteria must apply:-

  1. The touching of another person was intentional
  2. The touching of that person was sexual in nature
  3. The person touched did not consent to being touched
  4. There was no reasonable belief that person consented to being touched    

However, if the person being touched is under 13 years of age there is no requirement to prove consent or otherwise as legally, they are not deemed capable of being able to provide the requisite consent.

S.79(8) Sexual offences Act 2003 states that “touching includes touching:

(a) with any part of the body,

(b) with anything else,

(c) through anything.”

In other words, skin-on-skin contact is not necessary and can occur if the person is fully clothed. 

Accidental touching in everyday life can occur such as on crowded public transport or in crowds generally; it must be clear the contact was intentional and was sexual in nature.    

Police have made a recent appeal after a woman alleged she was subject of sexual touching when she entered a lift and a man touched her on her waist and kissed her on her neck.  The lift stopped and the victim got out.  The Detective Inspector handling the case said,  “We’re determined to find the person responsible and put them before the courts.”  

In the event sexual assault is proven, all of the circumstances will be considered by the presiding Judge to determine the category of the offence.  The judge will consider (i) the degree of harm caused and (ii) culpability – such as the degree of planning, abuse of trust and whether it was aggravated for example. 

Where there is sufficient prospect of rehabilitation, a community order with a sex offender treatment programme can be an alternative to a custodial sentence. 

In the UK, currently a custodial sentence is capped at:

  • 10 years for offences in which the victim was aged 13 years or older;
  • 14 years for offences in which the victim was aged under 13 years

Written by Lyndsey Jackson at BLM (lyndsey.jackson@blmlaw.com)

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