Sexual Offence Solicitors
Sexual Offences
Sexual Offences Act 2003
Sexual Offences Act 2003 – non consensual offences
- ▸ Rape (Section 1)
- ▸ Assault by penetration (section 2)
- ▸ Sexual Assault (section 3)
- ▸ Causing sexual activity without consent (section 4)
Sexual Offences Act 2003 – offences against children
- ▸ Offences against children under 13 (sections 5-8)
- ▸ Rape of a child under 13 (section 5)
- ▸ Assault of a child under 13 by penetration (section 6)
- ▸ Sexual assault of a child under 13 (section 7)
- ▸ Causing or inciting a child under 13 to engage in sexual activity (section 8)
- ▸ Offences against children under 16 (sections 9 – 13)
- ▸ Child sex offences committed by youths (section 13)
- ▸ Other related offences against children under 16
- ▸ Arranging and facilitating a child sex offence (section 14)
- ▸ Meeting a child following sexual grooming (section 15)
- ▸ Sexual Communications with a child (section 15A)
- ▸ Offences against children under 18
- ▸ Abuse of position of trust (sections 16 – 24)
- ▸ Familial child sex (sections 25 – 27)
Sexual Offences Act 2003 – Offences against persons with a mental disorder
- ▸ Sections 30 – 33 Offences against a persons with a mental disorder impeding choice
- ▸ Sections 34 – 37 offences where there are inducements etc. to a person with a mental disorder
- ▸ Section 38 – 41 Offences by care workers against persons with a mental disorder
- ▸ Section 42
Sexual Offences Act 2003 – Sex with an adult relative
Sexual Offences Act 1956
- ▸ Unlawful Sexual Intercourse with a girl under 13
- ▸ Buggery contrary to section 12 Sexual Offences Act 1956
- ▸ Indecent Assault
- ▸ Section 1 Indecency with Children Act 1960
Sexual exploitation of children
- ▸ Sections 47 – 50 (as amended by s68(1) to (6) Serious Crime Act 2015)
- ▸ Section 58 Trafficking (repealed)
Consent
The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:
- ▸ rape,
- ▸ assault by penetration,
- ▸ sexual assault, and
- ▸ causing a person to engage in sexual activity.
In relation to these offences, a person (A) is guilty of an offence if (s)he:
- ▸ Acts intentionally;
- ▸ (B) does not consent to the act;
- ▸ And (A) does not reasonably believe that B consents.
In relation to many other offences there is no requirement to prove an absence of consent.
Only the act itself and the age of the victim/complainant or other criteria need to be proved. They include:
- ▸ Rape of a child under 13
- ▸ Assault by penetration of a child under 13
- ▸ Sexual assault of a child under 13
- ▸ Inciting or causing a person to engage in sexual activity with a child under 13
- ▸ Child sexual offences involving children under 16
- ▸ Children under 18 having sexual relations with persons in a position of trust
- ▸ Children under 18 involved with family members over 18
- ▸ Persons with a mental disorder impeding choice
- ▸ Persons with a mental disorder who are induced threatened or deceived
- ▸ Persons with a mental disorder who have sexual relations with care workers
Statutory definition of consent
Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. The Prosecution should consider this in two stages. They are:
- ▸ Whether a complainant had the capacity (that is the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
- ▸ Whether he or she was in a position to make that choice freely, and was not constrained in any way.
Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.
Reasonable belief in consent
Deciding 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 (subsection (2) of sections 1 – 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.
The suspect (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the suspect in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.
The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is for the police to ask two questions.
- ▸ Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
- ▸ If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).
Intoxication and consent
The issue of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs.
A complainant does not consent if they are incapacitated through drink.
A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious. A prosecutor must consider the complainant’s state of mind at the time of the alleged assault.
Evidence of a lack of recollection of events cannot of itself be determinative of issues of consent and capacity.
Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine.
Complainant’s absence of memory In R v Tambedou [2014] EWCA Crim 954 the Court of Appeal held that the complainant’s evidence that she could not remember was not sufficient for the judge to remove the case from the jury.
Relevance to consent issue of a provable lie told by the defendant regarding whether sexual intercourse took place. In R v Hysa [2007] EWCA Crim 2056, the Court of Appeal the jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.
Consent and penetration as a continuing act
In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Where the suspect lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.
Consent to serious harm for sexual gratification
A person is unable to consent to the infliction of harm that results in ABH or other more serious injury, for the purposes of obtaining sexual gratification: s.71 Domestic Abuse Act 2021, which codifies the principle set out in the case of R v Brown [1993] 2 WLR 556.
Thus, a suspect will be unable to rely on a victim’s consent to the infliction of such harm as part of any so-called ‘rough sex’ defence, and will remain liable to prosecution for ABH or GBH. An exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI.
The law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse.
Consent in Child Sexual Exploitation cases
In cases involving the alleged grooming of vulnerable complainants such as youths, apparent consent to sexual activity may not amount to consent in law. In these circumstances determining whether to select; consensual or non-consensual offences may be complex.
Whilst in many cases the complainant’s evidence on the issue of consent may be determinative, there will be situations where he or she may have a limited or distorted appreciation or understanding of their role in sexual relations and the true nature of what occurred. In these situations, the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent.
R v Malone (1998) 2 Cr. App. R. 447
One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent. In such a case, a young and immature person may not understand the full significance of what he or she is doing. They may be placed in a position where they are led to acquiesce rather than give proper or real consent.
R v Robinson [2011] EWCA Crim 916 and R v Olugboja [1981] EWCA Crim 2
In a case where a vulnerable or immature individual has been groomed, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given. R v Hysa [2007] EWCA Crim 2056
Rape (section 1)
Key points
- ▸ Rape is a crime of basic intent, and drunkenness is not a defence.
- ▸ Section 1 Rape involves penetration of the vagina, anus or mouth by a penis, therefore a woman can only commit this offence as an accomplice.
- ▸ Rape is an indictable only offence and carries a maximum of life imprisonment
Assault by penetration (section 2)
Key points
- ▸ There must be penetration of the vagina or anus but not the mouth.
- ▸ Penetration can be with any part of the body (e.g. finger, tongue, toe) or by anything else (e.g. bottle).
- ▸ This offence should be charged where, by virtue of the fact that the complainant is unsure if penetration was by a penis or something else, there is insufficient evidence to charge rape
- ▸ Assault by penetration is an indictable only offence and carries a maximum of life imprisonment
Sexual Assault (section 3)
Key points
- ▸ Touching is widely defined and includes touching another person with any part of the body, or with anything else. Touching can be through clothing. In R v H (Karl Anthony) [2005] 2 Cr. App. R. 9 the Court of Appeal held that the touching of an individual’s clothing was sufficient to amount to ‘touching’ for the purposes of section 3.
- ▸ Touching includes touching amounting to penetration e.g. kissing. Where there is sufficient evidence, penile penetration of the vagina, anus or mouth should be charged as rape and penetration of the vagina or anus with any part of a person’s body or other object should be charged as assault by penetration.
- ▸ Sexual assault is an either way offence and attracts a maximum 10 year sentence on indictment
Causing sexual activity without consent (section 4)
Causing sexual activity without consent (section 4) (non penetrative) (either way – 10 years on indictment)
Causing sexual activity without consent (penetrative) (section4(4)) (indictable – maximum life imprisonment)
Key points
- ▸ The offence can be committed by words alone e.g. suspect makes his victim carry out a sexual act, such as masturbation, that only involves the victim.
- ▸ This offence covers situations where, for example, a complainant is forced to carry out a sexual act involving their own person, such as masturbation, or to engage in sexual activity with a third party, who may be willing or not, or to engage in sexual activity with the offender e.g. woman forces a man to penetrate her.
- ▸ This section creates two separate offences, penetrative and non-penetrative.
- ▸ The mode of trial and maximum sentence varies depending on whether there is penetration.
- ▸ The non-penetrative offence is either way and attracts a maximum 10 year sentence on indictment
- ▸ The penetrative offence is indictable only and attracts a maximum sentence of life imprisonment
Sexual Offences Act 2003 – offences against children
The 2003 Act identifies three categories of offences against children of different ages. They are:
- ▸ Offences against those under 13;
- ▸ Offences against those under 16;
- ▸ Offences against those under 18.
Offences against children under 13 (sections 5-8)
- ▸ s5 rape
- ▸ s6 assault by penetration
- ▸ s7 sexual assault of a child under 13
- ▸ s6 assault by penetration
- ▸ s8 causing or inciting sexual activity with a child
Section 5: Rape of a child under 13
- ▸ Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.
- ▸ In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing but only after consideration has been given to the impact on the child and the public interest in proceeding in this way. On no account should a section 1 rape count be added as an alternative. Juries should not be asked to deliberate upon issues that are critical to sentence which are not necessary to substantiate a charge in law. Rather these are questions that a judge should consider by hearing evidence on the relevant point and according to the procedure as set out in R v Newton 77 Cr. App. R. 13. See case of Delahaye-Bryan [2015] EWCA Crim 1987.
- ▸ The section 5 offence is an indictable only offence and carries a maximum sentence of life imprisonment
Section 6: Assault of a child under 13 by penetration
- ▸ Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under 13 with a part of his body, or with anything else.
- ▸ A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.
- ▸ The section 6 offence is an indictable only offence and carries a maximum sentence of life imprisonment
Section 7: Sexual assault of a child under 13
- ▸ Section 7 makes it an offence for a person to touch a child under 13 sexually.
- ▸ The section 7 offence is an either way offence and carries a maximum sentence of 14 years imprisonment
Section 8: Causing or inciting a child under 13 to engage in sexual activity
- ▸ Section 8 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity.
- ▸ Section 8 creates two offences to reflect causing or inciting 1) penetrative sexual activity and 2) non-penetrative sexual activity
- ▸ The offences cover the situation where sexual activity itself does not take place.
- ▸ The non-penetrative offence is an either way offence and carries a maximum sentence of 14 years imprisonment.
- ▸ The penetrative offence is an indictable only offence and carries a maximum sentence of life imprisonment.
Key Points
- ▸ Sections 5 – 8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant.
- ▸ A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
- ▸ The under-13 offences overlap to a very significant extent with the child sex offences (sections 9 – 15 of the 2003 Act), which are designed to protect children under 16. However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect such children. This is to ensure the availability of the higher maximum penalties for the under-13 offences and avoid children under 13 giving evidence in relation to consent.
- ▸ These are offences of strict liability as to age. The prosecution has to prove only two facts. First, the intentional sexual activity and Second, the age of the complainant at the date of the sexual activity, using, for example, a certified copy of a birth certificate together with evidence of identity.
- ▸ There is no defence of mistaken reasonable belief in the age of the complainant.
Offences against children under 16 (sections 9 – 13)
The 2003 Act provides that the age of consent is 16. Sections 9 -13 clarify that any sexual activity involving consenting children under 16 is unlawful. Sections 9-12 cover adult defendants. Section 13 relates to child defendants.
- ▸ Section 9 Sexual activity with a child
- ▸ Section 10 Causing or inciting a child to engage in sexual activity
- ▸ Section 11 Engaging in sexual activity in the presence of a child
- ▸ Section 12 Causing a child to watch a sexual act
Key Points
- ▸ Consent is irrelevant.
- ▸ There is a defence of reasonable belief that the child is 16 years or over. The defence of reasonable belief does not apply if the child is under 13 years.
- ▸ There is no defence for lawfully married overseas couples where one party is under 16.
- ▸ Sections 9 and 10 create two separate offences of penetrative and non-penetrative sexual activity. If penetration is involved the offence is indictable only. The maximum sentence on indictment is 14 years.
- ▸ Sections 11 and 12 are either way offences which attract a maximum sentence of 10 years imprisonment.
- ▸ Under section 11, there is no requirement that the complainant is actually aware of the activity, though there is a requirement that the complainant is present, or could potentially observe it. Observation can be via a webcam and includes an image.
- ▸ In accordance with Section 13 a person under 18 commits an offence if he does anything which would amount to an offence under Sections 9-12.
Section 13: Child sex offences committed by youths
Key Points
- ▸ Pursuant to Section 13 SOA 2003 it is an offence if a person under 18 commits an act which would amount to an offence under sections 9 – 12.
- ▸ Pursuant to section 13 the maximum penalty on indictment is reduced to imprisonment to a term not exceeding 5 years.
- ▸ Prosecutors must also apply the Code and any relevant CPS policies.
- ▸ Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).
Other related offences against children (under 16)
- ▸ Section 14 Arranging and facilitating a child sex offence
- ▸ Section 15 (as amended) Meeting a child following sexual grooming
- ▸ Section 15(a) Sexual Communications with a child
Section 14 Arranging and facilitating a child sex offence
Key Points
- ▸ The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.
- ▸ A person must intentionally arrange or facilitate for himself or another something that he intends or believes would happen that would result in a commission of a child sex offence in any part of the world (sections 5 -13).
- ▸ There is a defence if the person arranges or facilitates something that although he believes might happen, he does not intend it to happen, and he acts for the protection of the child i.e. from sexually transmitted infection; physical safety; from becoming pregnant; or promoting the child’s well-being by giving advice. For example, where a person provides a condom to a girl under 16 in order to protect her from sexually transmitted infections/pregnancy in circumstances where she says she is already having sexual intercourse.
- ▸ However, the defence does not apply if the person acts for the purpose of causing or encouraging the activity constituting the child sex offence or the child’s participation in it. For example, a person who gives a condom to a child under 16 to protect her from pregnancy whilst arranging for her to have sex with a friend. Similarly, the defence does not apply if the person acts for the purpose of obtaining sexual gratification.
Section 15 Meeting a child following sexual grooming
Key points
- ▸ This offence is intended to protect children from adults who communicate (not restricted to on-line communications) with them and then arrange to meet them with the intention of committing a sexual offence against them, either at that meeting or subsequently.
- ▸ The offence is committed when the offender meets the child or travels with the intention of meeting the child, or arranges to meet the child, or the child travels with the intention of meeting the offender. The meeting or at least part of the travel must take place within the jurisdiction. The person must have an intention to commit any offence under Part 1 of the 2003 Act or any act done outside England and Wales, which would be an offence in the jurisdiction. This may be evident from the previous communications or other circumstances e.g. an offender travels in possession of ropes, condoms or lubricants, etc. The child is under 16 and the adult does not reasonably believe that the child is over 16. However, if this is not the case e.g. the child’s place has been taken by an undercover police officer, an attempt could be charged.
- ▸ The offence only applies to adults.
- ▸ There must be communication (a meeting or any other form of communication) on at least one previous occasion. It is not necessary for the communications to be of a sexual nature.
- ▸ The communication can take place anywhere in the world.
- ▸ The Section 15 offence is either way and attracts a maximum penalty of 10 years imprisonment on indictment.
- ▸ Prosecutors should be aware of the activities of so called ‘Internet Vigilantes’ (link) who are members of the public using social media to uncover alleged paedophiles and refer to the related guidance.
Section 15A Sexual Communications with a child
Key points
- ▸ Section 67 of the Serious Crime Act 2015 inserts a new offence into the Sexual Offences Act 2003, at section 15A, criminalising sexual communication with a child.
- ▸ The provisions came into effect on 3 April 2017 and the offence is not retrospective.
- ▸ The offence is committed where a person aged 18 or over intentionally communicates with a child under 16, who the adult does not reasonably believe to be 16 or over, if the communication is sexual or if it is intended to encourage the child to make a communication which is sexual. The offence will be committed, whether or not the child communicates with the adult.
- ▸ A communication is sexual “if any part of it relates to sexual activity or a reasonable person would consider any part of the communication to be sexual”.
- ▸ The offence applies equally to online and offline communications and irrespective of the way the communication is made (for example it will apply to oral communications as well as to emails and text messages) and the offence can be prosecuted extra-territorially in the same way as other child sex offences.
- ▸ The offence will apply only where the defendant can be shown to have acted for the purposes of obtaining sexual gratification
- ▸ The offence is either way and attracts a maximum prison sentence of 2 years on indictment and the offence automatically attracts the notification requirements for registered sex offenders under the Sexual Offences Act 2003.
Offences against children under 18
Sections 16 – 24 Abuse of position of trust
Key points
- ▸ The primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives.
- ▸ These offences are primarily concerned with the child giving ostensible consent to the activity, but that consent is not relevant because of their particular relationship with the abuser.
- ▸ Positions of trust are defined in sections 21 and 22 SOA 2003, as amended by section 45 of the Police, Crime, Sentencing and Courts Act 2022, which inserts section 22A. This provision extends the definition of ‘position of trust’ to include someone who knowingly coaches, teaches, trains, supervises or instructs children on a regular basis, in a sport or a religion. However, section 22A will not apply where someone is in a position of trust in relation to another person in circumstances where section 21 applies.
- ▸ The prohibited sexual behaviours in sections 16 – 19 are identical to those prohibited by sections 9 – 12 (i.e. sexual activity with a child; causing a child to engage in sexual activity; sexual activity in the presence of a child; and causing a child to watch a sexual act).
- ▸ See section 23 for the defence for spouses and civil partners and section 24 for sexual relationships which pre dated the position of trust.
- ▸ These offences are either way and attract a maximum sentence of 5 years on indictment.
Sections 25 – 27 Familial child sex offences
Key points
- ▸ These offences reflect the modern family unit and take account of situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or living together as partners.
- ▸ For the purposes of sections 25 and 26 family relationships are defined in section 27 and fall within three categories: First, those listed in subsection (2), such as parent, grandparent, brother, sister, step-parent, half-brother, half-sister, uncle, aunt, foster parent etc., will always be family members; Second, those listed in subsection (3), such as partner of the other’s parent or cousins, will only be family members if A lives, or has lived in the same household or is or has been involved in the caring, supervising or sole charge of the child. The third category is similar to the second except that it applies only to those who are currently living in the same household e.g. an au pair who has responsibility for the child.
- ▸ Where penetration is involved the offences are indictable only and carry a maximum sentence of 14 years imprisonment. Where penetration is not involved the offences are either way and carry a maximum sentence of 5 years imprisonment.
- ▸ Sections 64 and 65 cover offences of sex with an adult relative and relate only to blood relatives.
Sexual exploitation of children
There is no specific offence of child sexual exploitation (CSE); it is defined in government guidance and policy in this way:
“Child sexual exploitation is a form of child sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears consensual. Child sexual exploitation does not always involve physical contact; it can also occur through the use of technology.”
Section 51 of the Sexual Offences Act 2003 defines sexual exploitation for the purposes of offences contrary to sections 48 to 50 of the Sexual Offences Act 2003. On 31 March 2017, s.176 of the Policing and Crime Act 2017 expanded the definition of ‘sexual exploitation’ to include situations where images are streamed (such as via the internet) or otherwise transmitted by some other technological means, such as CCTV.
Coercion and manipulation often feature in abusive situations so that the child or young person does not understand what is happening. Offenders may groom the child or young person and their family and friends, gaining their trust or they may make threats. Sometimes, the offender may exert control but implicating the victim in other criminal activity (e.g. possession of illegal drugs or shoplifting). Some offenders may claim that the victim has brought shame on their family. Prosecutors should be aware of cultural barriers to reporting such abuse.
Offenders may avoid suspicion by taking victims to be abused for a short time or during school hours so their absence is not noticed. The fact that a victim is maintaining a seemingly normal routine does not mean they have not been victims of sexual abuse.
‘Grooming’ is not a specific form of child sexual exploitation but should be seen as a way in which perpetrators target children and manipulate their environments. It is an approach to exploitation and may be the beginning of a complex process adopted by abusers. Grooming can be defined as developing the trust of a young person or his or her family in order to engage in illegal sexual activity or for others to engage in illegal sexual activity with that child or young person.
Sections 47 – 50 provide offences specifically to tackle the use of children in the sex industry who are victims of abuse and sexual exploitation. Although the legal age of consent is 16, Parliament recognised the need to protect children up to the age of 18 from those who seek to exploit them for the purposes of prostitution or pornography. The terminology, which previously referred to child prostitution, was updated by the Serious Crime Act 2015 to reflect the exploitative nature of these acts.
Sections 47 – 50
- ▸ Section 47 Paying for the sexual services of a child
- ▸ Section 48 Causing or inciting sexual exploitation of a child
- ▸ Section 49 Controlling a child in relation to sexual exploitation
- ▸ Section 50 Arranging or facilitating sexual exploitation
Key points
- ▸ A person is a child if under 18.
- ▸ Consent is not in issue. It does not matter if a child of 16 or 17 consents to the activity, it is those who exploit children who commit the criminal act.
- ▸ The defence that a person reasonably believed the child was over 18 does not apply if the child is under 13.
- ▸ The definition of payment is very wide.
- ▸ A person is involved in pornography if an image of the child is recorded.
- ▸ Section 176 of the Policing and Crime Act 2017 revised the definition of Child Sexual Exploitation set out in section 51 Sexual Offences Act 2003 to include situations where indecent images of a child are “streamed or otherwise transmitted” as well as where they are recorded, making the offences more robust in the light of technological changes and ensuring that those who exploit children in this way can be effectively prosecuted for the appropriate offence.
- ▸ Section 47 is an indictable only offence if penetration occurs and the maximum sentence is 14 years imprisonment, or life imprisonment if the victim is under 13 years of age. Where the child is 16 or 17 the offence is either way and the maximum sentence is 7 years irrespective of penetration.
- ▸ Section 48 is an either way offence. The maximum sentence is 14 years imprisonment.
- ▸ Sections 49 and 50 attract the same sentences as per Section 48.
Offences against persons with a mental disorder
Sections 30 – 41 protect persons with a mental disorder who are vulnerable to sexual exploitation and creates three categories of offence.
Sections 30 – 33
The first category relates to persons whose mental functioning is so impaired at the time of the sexual activity that they are unable to make any decision about their involvement in that activity through a lack of capacity to choose or an inability to communicate such choice.
Sections 34 – 37
The second category relates to those who have capacity to consent to sexual activity but whose mental disorder is not so severe they are unable to refuse but who are vulnerable to inducement, threat or deception.
Section 38 – 41
The third category relates to those who have capacity to consent but who for reasons associated with their mental disorder may agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon the carer.
Key points
- ▸ The prohibited sexual activity in each category above is the same activity as for the child sex offences (sections 9 – 12) i.e. intentional sexual touching, engaging in sexual activity in the presence of a person and causing a person to watch a sexual act and the four breach of trust offences in sections 16 -19.
- ▸ For offences under sections 30 – 37, prosecutors must prove the complainant has a mental disorder and the defendant knows or could reasonably be expected to know that.
- ▸ For offences committed by care workers, there is a presumption that the defendant knew or could reasonably be expected to know of the mental disorder unless sufficient evidence is adduced to raise this as an issue.
- ▸ Mental disorder is defined as set out in section 1 Mental Health Act 1983, as amended by Mental Health Act 2007, as “any disorder or disability of the mind”. As well as including serious mental illness this definition ensures protection of those with lifelong learning disability and persons who develop dementia later in life.
- ▸ Medical evidence will usually be required to prove the mental disorder.
- ▸ Section 42 defines the relationship of care (see below for more detail).
- ▸ Defences include marriage (section 43) and a pre-existing sexual relationship (section 44).
- ▸ Offences involving penetration as outlined in the relevant sections will be indictable only.
- ▸ The maximum sentence for Sections 30, 31, 34 and 35 is life imprisonment if penetration occurs otherwise the maximum sentence 14 years on indictment.
- ▸ Sections 32, 33, 36 and 37 are either way offences and attract a maximum sentence of 10 years on indictment.
Section 42
This section defines when a person is involved in the care of another for the purposes of section 38 – 41.
Key points
- ▸ Subsection 2 applies if the person is accommodated and cared for in a care home, community home, voluntary home or children’s home and the offender performs functions in the home in the course of employment which brings him or her into regular face to face contact.
- ▸ Subsection 3 applies to National Health Service bodies or independent medical agencies.
- ▸ Subsection 4 applies to anyone providing care assistance or service in connection with the persons mental disorder whether or not in the course of employment. This section therefore covers persons being cared for in their own home. Home office guidance gives an example falling into this section of a voluntary care worker who takes a mentally disordered person on weekly outings or visits him at home to provide complimentary therapy.
- ▸ There is no requirement for paid employment, volunteers can be caught under this provision.
Sex with an adult relative
Sections 64 and section 65 Sexual Offences Act 2003 make it an offence to have sex with an adult relative either by committing, or consenting to, an act of sexual penetration.
Key Points
- ▸ The ways in which the parties are related are set out in section 64(2) and includes uncles, aunts and adoptive parents but not their spouses or partners.
- ▸ In cases where a lawful relationship pre-dated the act and in the absence of exploitation it is unlikely to be in the public interest to prosecute.
- ▸ Prosecutors should bear in mind that all adult parties will commit an offence providing they either commit or consent to the act, regardless of whether or not they are the ‘victim’. Prosecutors should always consider the position of the parties individually and identify any issues of exploitation and victimisation. Although both may have committed an offence, different factors may apply to each, especially in relation to the public interest.
Sexual Offences Act 1956
The Sexual Offences Act 1956 is the primary piece of legislation covering sexual offending which took place prior to 1 May 2004. When selecting charges prosecutors must be mindful of changes to offence descriptions, sentencing powers and legal issues including time limits. The key dates and changes are highlighted under each offence and great care must be taken to ensure the indictment is framed to accurately reflect these changes.
The commencement date of the Act was 01 January 1957 and prosecutors should only use the 1956 Act for offences committed before 1 May 2004. When it is not possible to prove whether the offence occurred before or after 1st May 2004, prosecutors should note that section 55 Violent Crime Reduction Act 2006 applies. In order to rely on section 55, each offence should be charged in the alternative under the old and new regimes.
The most commonly charged offences under the Sexual Offences Act 1956 are:
- ▸ Section 1 Rape
- ▸ Section 5 Unlawful sexual intercourse by a man with a girl under 13
- ▸ Section 14 Indecent assault on a woman
- ▸ Section 15 Indecent assault on a man
Offences which are now time barred and should not be charged:
- ▸ Section 6 Unlawful Sexual Intercourse with a girl under 16
- ▸ Section 12 Buggery (subject to specific exceptions)
- ▸ Section 13 Gross Indecency
Rape – Key points to note
- ▸ The definition of rape was extended by section 142 Criminal Justice and Public Order Act 1994 to include anal sexual intercourse with another man without consent (in force from 03 November 1994).
- ▸ The definition of rape was extended by Section 142 Criminal Justice and Public Order Act 1994 to include anal sexual intercourse with a female or male without consent, (in force from 03 November 1994).
- ▸ There is no statutory definition of consent under the 1956 Act and it is now commonly accepted that the approach outlined by section 74 Sexual Offences Act 2003 applies when directing the jury.
- ▸ The offence attracts a maximum sentence of life imprisonment.
Unlawful Sexual Intercourse with a girl under 13
- ▸ The offence attracts a maximum sentence of life imprisonment.
- ▸ The rape of a girl under 13 years should be charged contrary to section 5 Sexual Offences Act 1956 rather than contrary to section 1 SOA 1956. This reflects the fact that a child under 13 years cannot consent to sexual intercourse.
Buggery contrary to section 12 Sexual Offences Act 1956
- ▸ This offence is only available in limited circumstances
- ▸ The offence is available if the act amounted to an assault (i.e it was non-consensual). Non-consensual anal intercourse should be charged as rape for incidents occurring on or after 3rd November 1994.
- ▸ The offence is available regardless of consent if the complainant was under 16 when the offence was committed.
- ▸ The minimum age of consent to buggery and certain homosexual acts was reduced from 18 to 16 years in England and Wales on 8 January 2001, Sexual Offences (Amendment) Act 2000. This was not retrospective.
- ▸ Acts of buggery involving a 16 or 17 year old complainant taking place between 3 November 1994 and 8th January 2001 are still capable of being prosecuted, however, unless circumstances are exceptional it is unlikely to be in the public interest.
- ▸ DPP’s consent, to be read in accordance with section 1(7) Prosecution of Offences Act 1985, is required for proceedings against any male for offences of buggery or for aiding, abetting, counselling, procuring or commanding those offences where either male was under the age of consent.
Indecent assault
On a woman, contrary to section 14 Sexual Offences Act 1956.
On a man, contrary to section 15 Sexual Offences Act 1956.
Key Points to note
- ▸ A boy or girl under 16 cannot consent to an act which would otherwise be an assault but any such consent by the victim would be relevant when considering the public interest in prosecuting.
- ▸ Due to the change in sentencing powers consideration should always be given to specifying the age of a girl or boy in older cases, if under 16.
- ▸ Section 2 of the Indecency with Children Act 1960 as amended by section 37 and schedule 2(17) of the Sexual Offences Act 1956, increased the maximum sentence from 2 years to 5 years: “if on a girl under thirteen who is stated to have been so in the indictment”.
- ▸ In cases where a victim under the age of 16 has consented in fact a defendant is entitled to be acquitted where he held an honest belief that the complainant was 16 or over and he genuinely believed she was consenting R v K [2001] 3 W.L.R. 471
- ▸ Section 6 unlawful sexual intercourse in relation to a victim who was under 16 years is subject to a 12 month time limit and is therefore unavailable. It is an abuse of process to charge indecent assault under section 14 to avoid the 12 month time limit R v J [2005]1 A.C.562 HL.
Section 1 Indecency with Children Act 1960
Key points to note
- ▸ Prior to the implementation of the Indecency with Children Act 1960 there was no offence covering a situation where the defendant caused a child to touch him or another in a sexual manner or committed a sexual act in the presence of a child for his (defendant’s) own sexual gratification.
- ▸ The 1960 Act provides for the offence of gross indecency with/towards a child or incitement of a child to commit an act of gross indecency with a defendant or another person
- ▸ Allowing a young child’s hand to remain on defendant’s penis for five minutes without more amounted to an ‘invitation’ to continue the indecent activity and an ‘act’ for the purposes of the legislation as per R v Speck (1977) 65 Cr App R 161.
- ▸ A genuine belief that the complainant was 16 amounts to a defence
- ▸ 01 October 1997 the maximum sentence for offence increased from 2 years imprisonment to 10 years imprisonment.
- ▸ For offences committed up until 11 January 2001, the acts of indecency had to be committed on a child under the age of 14 years. From 11 January 2001 the section applied to children under the age of 16 years.
- ▸ In force from 02/07/1960 until 30/4/2004.
- ▸ From 1 May 2004 Section 10 of the Sexual Offences Act 2003 covers this offence.
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