Sexual Assault Cases: Laws, Gender Neutrality, And Sentencing

Dec 07, 2023

Sexual Assault involving Penetration

Sexual assault involving penetration is defined in Section 376(2) of the Penal Code as follows:

“(2) Any person (A) who –

• sexually penetrates, with a part of A’s body (other than A’s penis, if a man) or anything else, the vagina or anus, as the case may be, of another person (B);

• causes a man (B) to penetrate, with B’s penis, the vagina, anus or mouth, as the case may be, of another person including A; or

• causes another person (B), to sexually penetrate, with a part of B’s body (other than B’s penis, if a man) or anything else, the vagina or anus, as the case may be, of any person including A or B

shall be guilty of an offence if B did not consent to the penetration or if B is below 14 years of age, whether B did or did not consent to the penetration.”

An offence of sexual assault involving penetration is gender neutral. For instance, if a woman uses a glass bottle to penetrate a man’s anus without consent, she would be guilty of an offence under Section 376(2) of the Penal Code.

Section 376(2)(b) and Section 376(c) of the Penal Code are more easily understood as acts of “sexual coercion”. To illustrate the point:

• if an accused person (A) points a gun at a male person (B) in a bid to force B to penetrate A’s anus with B’s penis, A would be guilty of an offence under Section 376(2) of the Penal Code.

• if an accused person (A) points a gun at a male person (B) in a bid to force B to penetrate B’s anus with a banana, A would be guilty of an offence under Section 376(3) of the Penal Code.

The punishment for sexual assault involving penetration is found in Section 376(3) of the Penal Code, which prescribes for:

• An imprisonment term which may extend to 20 years; and

• Caning or Fine
  
  

Evidential Difficulties

The evidential difficulties that apply in cases of rape apply equally to cases of sexual assault involving penetration (and, indeed, to most other sexual offences).

Sentencing Guidelines

The Court of Appeal, responsible for guiding criminal lawyers, has developed sentencing guidelines for sexual assault. In fashioning an appropriate sentence, the following factors will be taken into account:

• Whether there was a breach of trust (i.e., the relationship between the offender and the victim).

• The young age of the victim.

• Whether the offender was in the company of others.

• Level of premeditation and planning.

• Whether severe harm or special trauma was inflicted.

Based on the forecited factors, the Court will then determine which of the following ‘bands’ the case falls under:

Band 1 – 7 to 10 years’ imprisonment and 4 strokes of the cane.

Band 2 – 10 to 15 years’ imprisonment and 8 stokes of the cane.

Band 3 – 15 to 20 years’ imprisonment and 12 strokes of the cane.

After placing the offence in one of the abovementioned Bands, the Court will then calibrate the final imprisonment term based on “offender-specific” factors – these are factors specific to the offender in question, and would normally include the offender’s antecedents (or lack thereof), young age, and genuine remorse.