What Is The Difference Between Rape and Sexual Assault?

It can be very daunting and confusing to understand the legal terminology around allegations of rape or sexual assault offences, especially when trying to navigate the legal system alone. 

In this article, we’ll explain the subtle but significant differences between rape and sexual assault, and the differences in sentences if convicted of either offence. This article will specifically review sections 1 and 3 of the Sexual Offences Act 2003. 

If you’re interested in a particular section, use the links below to navigate straight to it:

• What is sexual assault?
• What is rape?
• Is sexual assault the same as rape?
• What is ‘consent’?
• Punishment for sexual assault and rape crimes
• How we can help

Accused of a sexual assault or rape? Contact our criminal defence solicitors today for expert guidance and support.

What is sexual assault?

Section 3 SOA 2003 defines sexual assault as the intentional sexual touching of another, where consent is not given. This definition goes further to include touching or an activity that a reasonable person would regard as sexual. 

In these cases, the touching or conduct will sometimes be overtly sexual due to the part of the body that is touched or the nature of the touching. However, where the conduct or touching is not immediately apparent as being sexual, the court or jury would have to consider the surrounding context, which might include any words or behaviours demonstrated immediately before the alleged act. 

There have been cases of someone touching another person’s hair or feet that have ultimately been found to amount to a sexual assault when put in context with their words/ behaviours or known sexual fetishes. 

Sexual assault that involves penetration of someone’s vagina or anus with something other than a penis is also a different crime: assault by penetration.

What is rape?

Section 1 SOA 2003 states that rape is the intentional act of penetration with a penis into the vagina, anus or mouth of another person without their consent. So, whereas a sexual assault could be committed by using any body part to touch any part of the other person’s body, however innocuous those body parts might be, rape is specific to the penile penetration of the mouth, anus or vagina.

Rape can occur without physical violence or threats. It also encompasses sexual intercourse with individuals who are:

• Unconscious or unaware of the act
• Significantly impaired by drugs or alcohol
• Mentally incapacitated
• Unable to give consent
• Under the age of 13

Statutory rape

Note that statutory rape is a separate and distinct sex crime from rape. 

This refers to sexual activity with someone below the age of consent, which is 16 in the UK. Legally called sexual activity with a child under 16, it occurs when an adult engages in sexual activity with anyone under that age. It is treated as a serious criminal offence, regardless of consent.

Is sexual assault the same as rape?

No, sexual assault is not the same as rape. While rape is a form of sexual assault, not all sexual assault is rape. The term ‘sexual assault acts as an umbrella term for a range of sexual offences. The key difference between sexual and rape is that: 

Rape is a specific, separate crime with a precise legal definition involving penile penetration.

What is ‘consent’?

Whilst the physical acts involved in these offences are distinctly different, you will note that both include the same requirement in relation to consent, namely that the defendant knew that the complainant did not give consent or reasonably should have known this. 

Someone doesn’t consent to sex or other sexual activity if they:

• Say ‘no’.
• Seem unsure or upset, stay quiet, move away or don’t respond.
• Are asleep, unconscious, drunk, drugged or on drugs.
• Are pressured, manipulated, tricked or scared into saying ‘yes’ (for example, they are being threatened with “If you don’t, I will hurt someone you love”).
• Are too young or vulnerable to have the freedom and capacity to make a choice.

Consent must be clear, coherent, ongoing and willing. 

Punishment for sexual assault and rape crimes

Penalty for sexual assault

Sexual assault is what is known as an either-way offence. This means that it can be dealt with in either the magistrates or the Crown Court. The decision on which is the appropriate court is decided by reference to:

• Any aggravating features of the offence
• The age of the complainant 
• The harm caused. 

The magistrates will consider whether the case is too serious or complex for their jurisdiction and sentencing powers, which are limited to 6 months imprisonment. 

Sometimes, even when the magistrates retain a case, the defendant may elect to have their case tried by a jury in the Crown Court. There are positives and negatives associated with having a case heard at either court, including the length of time it takes for the case to conclude and the possible sentencing powers available. 

In the magistrate’s court, sexual assault carries a maximum sentence of 6 months but has a range of a medium-level community order up to 26 weeks’ custody.  

In the Crown Court, an offender may be sentenced to a maximum term of 10 years’ imprisonment, but the range is 6 months to 7 years’ imprisonment.  

Penalty for rape

Rape is considered a much more serious allegation and is known as an indictable-only offence. This means it can only be dealt with in the Crown Court and can carry a maximum sentence of life imprisonment with a range of 4 – 15 years on the sentencing guidelines, depending on the harm caused to the complainant (including physical, emotional and psychological harm). 

How we can help

Being accused of sexual assault or rape is extremely serious. If you are accused, you must seek legal advice immediately.

At RNLLP, we can provide a detailed advice conference to ask any questions you may have about either offence. This will allow you to be fully informed as to the law and any potential allegations made against you, including any pre-charge engagement that can be made to the police or what advice and representation you may need in court proceedings. 

Our knowledge and expertise in defending sexual offences, along with false rape allegations, affords us the ability to help you navigate these complex and often long cases with as little stress as possible. Please get in touch with a member of our team to discuss your case or to book a conference.