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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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                  (a)                 in relation to England and Wales, the meaning given by section

1 of the Care Standards Act 2000 (c. 14), and

                  (b)                 in relation to Northern Ireland, the meaning that would be

given by Article 90(1) of the Children (Northern Ireland) Order

1995 (S.I. 1995/755 (N.I. 2)) if in Article 91(2) of that Order

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paragraphs (b), (c), (f) and (g) and the words after paragraph (h)

were omitted;

                    “community home” has the meaning given by section 53(1) of the

Children Act 1989 (c. 41);

                    “hospital”—

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                  (a)                 in relation to England and Wales, means a hospital within the

meaning given by section 128(1) of the National Health Service

Act 1977 (c. 49), or any other establishment which is a hospital

within the meaning given by section 2(3) of the Care Standards

Act 2000;

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                  (b)                 in relation to Northern Ireland, has the meaning given by

Article 2(2) of the Health and Personal Social Services (Northern

Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14));

                    “private hospital” has the meaning given by Article 90(2) of the Mental

Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4));

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                    “residential family centre” has the meaning given by section 22 of the

Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3);

                    “voluntary home” has—

                  (a)                 in relation to England and Wales, the meaning given by section

60(3) of the Children Act 1989, and

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                  (b)                 in relation to Northern Ireland, the meaning given by Article

74(1) of the Children (Northern Ireland) Order 1995.

 25    Sections 18 to 22: marriage exception

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

sections 18 to 22 against another person (B) is not an offence under that section

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if they are lawfully married at the time.

     (2)    In proceedings for such an offence it is for A to prove that he and B were

lawfully married at the time.

 26    Sections 18 to 22: sexual relationships which pre-date position of trust

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

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sections 18 to 22 against another person (B) is not an offence under that section

if, immediately before the position of trust arose, a sexual relationship existed

between A and B.

     (2)    Subsection (1) does not apply if at that time sexual intercourse between A and

B would have been unlawful.

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     (3)    In proceedings for an offence under any of sections 18 to 22 it is for the

defendant to prove that such a relationship existed at that time.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    13

 

 27    Sections 18 to 22: existing sexual relationships

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

sections 18 to 22 against another person (B) is not an offence under that section

if—

           (a)           immediately before the commencement of that section, a sexual

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relationship existed between A and B, and

           (b)           the conduct would (apart from this section) constitute the offence only

because any of subsections (6) to (8) of section 23 applies.

     (2)    Subsection (1) does not apply if at that time sexual intercourse between A and

B would have been unlawful.

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     (3)    In proceedings for an offence under any of sections 18 to 22 it is for the

defendant to prove that such a relationship existed at that time.

Familial child sex offences

 28    Sexual activity with a child family member

     (1)    A person (A) commits an offence if—

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           (a)           he intentionally touches another person (B),

           (b)           the touching is sexual,

           (c)           the relation of A to B is within section 30, and

           (d)           B is under 18.

     (2)    Where in proceedings for an offence under this section the defendant proves

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that he believed that the other person was 18 or over, he is not guilty of the

offence unless it is proved that his belief was unreasonable.

     (3)    Where in proceedings for an offence under this section—

           (a)           it is proved that the relation of the defendant to the other person was of

a description falling within section 30, and

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           (b)           the defendant proves that he did not know that his relation to the other

person was of that description,

            he is not guilty of the offence unless it is proved that he could reasonably have

been expected to know that his relation to the other person was of that

description.

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     (4)    Section 76 applies to an offence under this section.

     (5)    A person guilty of an offence under this section, if aged 18 or over at the time

of the offence, is liable on conviction on indictment to imprisonment for a term

not exceeding 14 years.

     (6)    Unless subsection (5) applies, a person guilty of an offence under this section

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is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

5 years.

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 29    Inciting a child family member to engage in sexual activity

     (1)    A person (A) commits an offence if—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    14

 

           (a)           he intentionally incites another person (B) to touch, or allow himself to

be touched by, A,

           (b)           the touching is sexual,

           (c)           the relation of A to B is within section 30, and

           (d)           B is under 18.

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     (2)    Where in proceedings for an offence under this section the defendant proves

that he believed that the other person was 18 or over, he is not guilty of the

offence unless it is proved—

           (a)           that his belief was unreasonable, or

           (b)           that the other person was under 13.

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     (3)    Where in proceedings for an offence under this section—

           (a)           it is proved that the relation of the defendant to the other person was of

a description falling within section 30, and

           (b)           the defendant proves that he did not know that his relation to the other

person was of that description,

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            he is not guilty of the offence unless it is proved that he could reasonably have

been expected to know that his relation to the other person was of that

description.

     (4)    A person guilty of an offence under this section, if aged 18 or over at the time

of the offence, is liable on conviction on indictment to imprisonment for a term

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not exceeding 14 years.

     (5)    Unless subsection (4) applies, a person guilty of an offence under this section

is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

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           (b)           on conviction on indictment, to imprisonment for a term not exceeding

5 years.

 30    Family relationships

     (1)    The relation of one person (A) to another (B) is within this section if—

           (a)           it is within any of subsections (2) to (4), or

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           (b)           it would be within one of those subsections but for section 67 of the

Adoption and Children Act 2002 (c. 38) (status conferred by adoption).

     (2)    The relation of A to B is within this subsection if—

           (a)           one of them is the other’s parent, grandparent, brother, sister, half-

brother, half-sister, aunt or uncle,

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           (b)           one of them is or has been the other’s step-parent, or

           (c)           A is or has been B’s foster parent.

     (3)    The relation of A to B is within this subsection if A and B live or have lived in

the same household, or A is or has been regularly involved in caring for,

training, supervising or being in sole charge of B, and—

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           (a)           one of them is or has been the partner of the other’s parent,

           (b)           one of them is or has been the partner or spouse of the other’s aunt or

uncle,

           (c)           A and B are cousins, or

           (d)           the parent of one of them is or has been the other’s foster parent.

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Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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     (4)    The relation of A to B is within this subsection if—

           (a)           A and B live in the same household, and

           (b)           A is regularly involved in caring for, training, supervising or being in

sole charge of B.

     (5)    For the purposes of this section—

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           (a)           “aunt” means the sister or half-sister of a person’s parent, and “uncle”

has a corresponding meaning;

           (b)           “cousin” means the child of an aunt or uncle;

           (c)           a person is a child’s foster parent if—

                  (i)                 he is a person with whom the child has been placed under

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sections 23(2)(a) or 59(1)(a) of the Children Act 1989 (c. 41)

(fostering for local authority or voluntary organisation), or

                  (ii)                he fosters the child privately, within the meaning given by

section 66(1)(b) of that Act;

           (d)           a person is another’s partner (whether they are of different sexes or the

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same sex) if they live together as partners in an enduring family

relationship.

 31    Sections 28 and 29: marriage exception

     (1)    Conduct by a person (A) which would otherwise be an offence under section

28 or 29 against another person (B) is not an offence under that section if they

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are lawfully married at the time.

     (2)    In proceedings for such an offence it is for A to prove that he and B were

lawfully married at the time.

 32    Sections 28 and 29: existing sexual relationships

     (1)    Conduct by a person (A) which would otherwise be an offence under section

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28 or 29 against another person (B) is not an offence under that section if,

immediately before the commencement of that section, a sexual relationship

existed between A and B.

     (2)    Subsection (1) does not apply if at that time sexual intercourse between A and

B would have been unlawful.

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     (3)    In proceedings for an offence under section 28 or 29 it is for the defendant to

prove that such a relationship existed at that time.

Offences against persons with a mental disorder or learning disability

 33    Sexual activity with a person with a mental disorder or learning disability

     (1)    A person (A) commits an offence if—

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           (a)           he intentionally touches another person (B),

           (b)           the touching is sexual,

           (c)           B is unable to refuse because of a mental disorder or learning disability,

and

           (d)           A knows or could reasonably be expected to know that B has a mental

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disorder or learning disability and that because of it B is likely to be

unable to refuse.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to the touching

(whether because he lacks sufficient understanding of the nature or

possible consequences of what is being done, or for any other reason),

or

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           (b)           he is unable to communicate such a choice to A.

     (3)    Section 76 applies to an offence under this section.

     (4)    A person guilty of an offence under this section is liable, on conviction on

indictment—

           (a)           where subsection (5) applies, to imprisonment for life;

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           (b)           in any other case, to imprisonment for a term not exceeding 14 years.

     (5)    This subsection applies if the touching involved—

           (a)           penetration of B’s anus or vagina with a part of A’s body or anything

else,

           (b)           penetration of B’s mouth with A’s penis,

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           (c)           penetration of A’s anus or vagina with a part of B’s body, or

           (d)           penetration of A’s mouth with B’s penis.

 34    Causing a person with a mental disorder or learning disability to engage in

sexual activity

     (1)    A person (A) commits an offence if—

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           (a)           he intentionally causes a person (B) to engage in an activity,

           (b)           the activity is sexual,

           (c)           B is unable to refuse because of a mental disorder or learning disability,

and

           (d)           A knows or could reasonably be expected to know that B has a mental

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disorder or learning disability and that because of it B is likely to be

unable to refuse.

     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to engaging in the

activity caused (whether because he lacks sufficient understanding of

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the nature or possible consequences of the activity, or for any other

reason), or

           (b)           he is unable to communicate such a choice to A.

     (3)    Section 76 applies to an offence under this section.

     (4)    A person guilty of an offence under this section is liable, on conviction on

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indictment—

           (a)           where subsection (5) applies, to imprisonment for life;

           (b)           in any other case, to imprisonment for a term not exceeding 14 years.

     (5)    This subsection applies if the activity caused involved—

           (a)           penetration of B’s anus or vagina,

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           (b)           penetration of B’s mouth with a person’s penis,

           (c)           penetration of a person’s anus or vagina with a part of B’s body or by

B with anything else, or

           (d)           penetration of a person’s mouth with B’s penis.

 

 

 
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