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What is statutory rape and what is the defence?

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Statutory rape is an extremely serious sexual offence. Being convicted of statutory rape can therefore have severe consequences.

Here, we discuss what statutory rape is, what the punishment for statutory rape could be, what defences there may be for statutory rape, as well as what you should do if you are facing a charge of statutory rape.

While we hope this information is useful, please note, it should not be taken as legal advice. If you need legal support with allegations of statutory rape, then please get in touch and our team can advise you.

What is statutory rape?

Statutory rape is a specific type of rape which occurs when a victim is deemed unable to consent to sexual activity due to their age. Thus, unlike in allegations of rape involving adults, it is not necessary for the prosecution to prove that the complainant did not physically consent; rather, it is enough to prove that the complainant was under the age of consent. This is because it is not possible to provide valid consent in the eyes of the law if you are under the age of consent.

As such, even a child says that they consent to sexual activity, the law does not recognise this ‘consent’ as being valid. So, even if both parties willingly engage in sexual activity, if one party is under the age of consent, this will constitute statutory rape.

What is the age of consent?

The standard age of consent in England and Wales is 16 years old. This means that any person under the age of 16 years old will automatically be taken to not have consented to any sexual activity which they engage in.

In some circumstances, the law sets the age of consent at 18 years old. This is the case where the sexual activity occurs following an abuse of position of trust or where the sexual activity takes place between family members.

What is the law on statutory rape? There are four different offences which fall under the label of statutory rape:

  1. Rape of a child under the age of 13

This is an offence contrary to section 5 of the Sexual Offences Act 2003, and is committed when a person intentionally penetrates the vagina, anus or mouth of another person with his penis and that other person is under 13 years old.

This is an offence of strict liability, meaning that it is irrelevant how old the person believed the child to be. If it can be proved that the child was under the age of 13 when the penile penetration of their vagina, anus or mouth took place, the offence will be made out.

  1. Sexual activity with a child between the ages of 13 and 16

There is no specific offence of statutory ‘rape’ for cases involving children aged 13, 14, and 15. Instead, the relevant provision is section 9 of the Sexual Offences Act 2003, under which a person commits an offence if he intentionally touches another person who is under the age of 16, the touching is sexual, and he did not reasonably believe that the other person was aged 16 or over.

Whilst this is not an offence of strict liability, the onus is on the defendant to adduce sufficient evidence to suggest that he may have reasonably believed that the other person was aged 16 or over. It will then be the job of the prosecution to prove that he did not have such a reasonable belief. However, if the defendant cannot put forward any evidence to support his reasonable belief, he will be taken to not have reasonably believed that the other person was over 16 years old.

Where the sexual activity involved penile penetration of the vagina, anus or mouth, this will be taken into account at sentencing.

  1. Sexual activity with a child under the age of 18 where there is an abuse of position of trust

Again, there is no specific offence of statutory ‘rape’ in these circumstances, and thus the relevant offence is that under section 16 of the Sexual Offences Act 2003. A person commits this offence if:

  • he intentionally touches another person who is under the age of 18;
  • the touching is sexual;
  • he did not reasonably believe that the other person was aged 18 or over; and
  • he is in a position of trust in relation to the other person.

A position of trust exists in certain circumstances such as where the defendant works in a hospital and the other person is a patient, or where the defendant works in a school and the other person is a student.

Where the sexual activity involved penile penetration of the vagina, anus or mouth, this will be taken into account at sentencing.

  1. Sexual activity with a child family member under the age of 18

Similarly, there exists no specific offence of statutory ‘rape’ in this situation. The relevant offence is contained in section 25 of the Sexual Offences Act 2003, and is committed by a person where:

  • he intentionally touches another person who is under the age of 18;
  • the touching is sexual;
  • he did not reasonably believe that the other person was aged 18 or over;
  • he is a family member of the other person; and
  • he knows or could reasonably be expected to know that he is a family member of the other person.

Only certain relations will render the defendant and the other person family members, however this is not restricted to biological ties. Thus, whilst a parent-child relationship will be sufficient, so too will a foster-parent and foster-child relationship, even after the fostering has come to an end. The Sexual Offences Act 2003 makes clear who are considered family members and who are not.

Where the sexual activity involved penile penetration of the vagina, anus or mouth, this will be taken into account at sentencing.

What is the minimum sentence for statutory rape?

The minimum sentence for statutory rape depends on the specific offence that is alleged to have taken place:

  • Rape of a child under 13 – 6 years’ imprisonment
  • Sexual activity with a child between 13 and 16 – Community Order
  • Sexual activity with a child under 18 (abuse of position of trust) – Community Order (or 6 months’ imprisonment where there was penile penetration)
  • Sexual activity with a child family member under 18 – Community Order (or 2 years and 6 months’ imprisonment where there was penile penetration)

What is the maximum sentence for statutory rape?

The maximum sentence for statutory rape again varies depending on the specific offence:

  • Rape of a child under 13 – Life imprisonment
  • Sexual activity with a child between 13 and 16 – 14 years’ imprisonment  
  • Sexual activity with a child under 18 (abuse of position of trust) – 5 years’ imprisonment
  • Sexual activity with a child family member under 18 – 14 years’ imprisonment

How long does a statutory rape case last?

The time it takes for a statutory rape case to conclude will vary from case to case. It will usually depend on the time it takes the police to gather certain evidence and to build their case.

The statutory rape investigation process is likely to take many months, and can even take years where a case is particularly complex.

What defences are available for statutory rape?

Often, the defences raised against an accusation of statutory rape will rely on proof that:

  • The complainant was of the age of consent
  • The defendant reasonably believed the complainant to be of the age of consent (unless the complainant was under 13)
  • The alleged sexual activity did not occur

Further general defences could also apply, such as:

  • Duress
  • Automatism
  • Insanity
  • Being mistaken to the circumstances

Intoxication or drunkenness is not a valid defence to statutory rape.

What should I do if I’m being accused of statutory rape?

The prospect of facing a charge for statutory rape can be understandably extremely daunting. In addition to the potential sentence you could receive for a conviction, your livelihood and career could be put at risk. It is imperative that you have support and representation from experienced solicitors specialising in sexual offences of this nature.

At J D Spicer Zeb, our statutory rape solicitors have experience in handling these types of cases and know what will be required to build the strongest possible defence against the allegations you are facing. We can provide a robust defence and close personal support to ensure that you stand the best possible chance of securing a positive outcome for your case.

We are highly skilled at collating and presenting the various types of evidence that are relied on in statutory rape cases, including forensics, digital evidence and witness testimony. Our expertise in this area means that we can clearly identify any flaws in the case presented against you and make sure evidence that supports your defence is highlighted.

We have over 45 years of experience in dealing with criminal law matters and have also been accredited by the Law Society for Criminal Litigation. Our experience has means that we can demonstrate a strong track record of previous success, and has helped us to build strong relationships with many of the country’s leading criminal defence barristers.

If you are facing a statutory rape charge, we are here to provide you with the support you need.

Related matters:

We also provide support and guidance on various matters that are related to statutory rape, including:

Our related cases

Fees and funding

We always provide you with all the information you will need to know about the fees involved in your case.

If you need to attend court in relation to a statutory rape charge, Legal Aid may become available. Whether or not this is the case will depend on a means test and whether the grant of public funding is justified.

Where you do not qualify for Legal Aid, the alternative option is to fund the case on a private basis.

To find out more about the way we handle fees (both Legal Aid and private fees) for statutory rape charges, please use the links provide below:

Contact our criminal defence lawyers today

If you are due to attend the police station, require any urgent specialist advice, or immediate representation for statutory rape, please do not hesitate to get in touch.

You can contact our dedicated criminal defence lawyers in London, Birmingham, and Manchester by telephone on:

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you quickly.

24/7 legal representation for statutory rape

Please get in touch for a free consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice for statutory rape.

We are available to represent clients all over England and Wales at any time, so please contact our Emergency Number at 07836 577 556.

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"JD Spicer Zeb demonstrated a clear commitment to client service through their work with vulnerable and diverse individuals in what can be severely traumatic circumstances".

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