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criminal law assault by penetration notes
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What is assault by penetration?Section 2 - Assault by penetration
(1) a person commits an offence if -
(a) he intentionally penetrates the vagina or anus of another person with a part of his body or
anything else
(b) the penetration is sexual
(c) B does not consent to the penetration
(d) A does not reasonably believe that B consents
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps A has taken to ascertain whether B consents
(3) Sections 75 and 76 to an offence under the section
(4) A person guilty of an offence under the section is liable, an conviction on indictment, to
imprisonment or life.
Actus reus of assault by penetration;
- penetrate the vagina or anus of another person with a part of the body or anything else
- the penetration is sexual
- the victim does not consent
Penetrates the vagina or anus of another person with a part of the body or anything else;
includes surgically constructed vagina
Penetation is sexual;
sexual is defined by section 78 of the Act - "Penetration, touching or any other activity is sexual if a
reasonable person would consider that (a)whatever its circumstances or any person's purpose in
relation to it, it is becasue of its nature is sexual or (b) because of its nature it amy be sexual and
because of its circumstances or the purpose of any person in relation to it, it it sexual"
The victim does not consent;
consent is defined by section 74 of the Act - "A person consents if he agrees by choice and has the
freedom and capacity to make that choice".
There are aspects to this;
- whether the complainant had the freedom to choose
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