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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    31

 

           (a)           he intentionally penetrates another person’s vagina or anus with a part

of his body or anything else, or penetrates another person’s mouth with

his penis,

           (b)           the penetration is sexual, and

           (c)           the other person is a relative of A aged 18 or over.

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     (2)    In this section, “relative” means a parent, grandparent, child, grandchild,

brother, sister, half-brother or half-sister.

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

           (a)           it is proved that the defendant was related to the other person in any of

the ways mentioned in subsection (2), and

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           (b)           the defendant proves that he did not know that they were related in

that way,

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

been expected to know that they were related in that way.

     (4)    A person guilty of an offence under this section is liable—

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           (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

2 years.

 69    Sex with an adult relative: consenting to penetration

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     (1)    A person aged 16 or over (A) commits an offence if—

           (a)           another person (B) penetrates A’s vagina or anus with a part of B’s

body or anything else, or penetrates A’s mouth with B’s penis,

           (b)           A consents to the penetration,

           (c)           the penetration is sexual, and

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           (d)           B is a relative of A aged 18 or over.

     (2)    In this section, “relative” means a parent, grandparent, child, grandchild,

brother, sister, half-brother or half-sister.

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

           (a)           it is proved that the defendant was related to the other person in any of

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the ways mentioned in subsection (2), and

           (b)           the defendant proves that he did not know that they were related in

that way,

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

been expected to know that they were related in that way.

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     (4)    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;

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

2 years.

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Other offences

 70    Exposure

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

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    32

 

           (a)           he intentionally exposes his genitals,

           (b)           he knows or intends that someone will see them, and

           (c)           he knows or intends that, or (unless subsection (2) applies) is reckless

as to whether, a person who sees them will be caused alarm or distress.

     (2)    This subsection applies where A is in a dwelling and does not know or intend

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that a child aged under 16 will see his genitals.

     (3)    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;

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

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2 years.

 71    Voyeurism

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

           (a)           for the purpose of obtaining sexual gratification, he observes another

person (B) doing a private act or looks at a moving or still image of B

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doing such an act,

           (b)           he knows that B does not consent to being observed or (as the case may

be) to the image being looked at, for his sexual gratification, and

           (c)           where the image is of B doing such an act on an earlier occasion, he

knows that, while doing the act, B did not consent to the act being

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recorded with a view to an image of the act becoming available for the

sexual gratification of A, a class of persons to which A belongs, or

persons generally.

     (2)    For the purposes of this section, a person is doing a private act if the person is

in a structure which, in the circumstances, would reasonably be expected to

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provide privacy, and—

           (a)           the person’s genitals, buttocks or breasts are exposed or covered only

with underwear,

           (b)           the person is using a lavatory, or

           (c)           the person is doing a sexual act that is not of a kind ordinarily done in

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public.

     (3)    In this section, “structure” includes a tent, vehicle or vessel or other temporary

or movable structure.

     (4)    A person commits an offence if he instals or operates equipment, or constructs

or adapts a structure or part of a structure, with the intention of enabling

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himself or another person to commit an offence under subsection (1).

     (5)    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;

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

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2 years.

 72    Intercourse with an animal

     (1)    A person commits an offence if—

           (a)           he intentionally performs an act of penetration with his penis,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    33

 

           (b)           what is penetrated is the vagina or anus of a living animal, and

           (c)           he knows that, or is reckless as to whether, that is what is penetrated.

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

           (a)           A intentionally causes, or allows, A’s vagina or anus to be penetrated,

           (b)           the penetration is by the penis of a living animal, and

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           (c)           A knows that, or is reckless as to whether, that is what A is being

penetrated by.

     (3)    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

2 years.

 73    Sexual penetration of a corpse

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

           (a)           he intentionally performs an act of penetration with a part of his body

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or anything else,

           (b)           what is penetrated is a part of the body of a dead person,

           (c)           he knows that, or is reckless as to whether, that is what is penetrated,

and

           (d)           the penetration is sexual.

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     (2)    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;

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

2 years.

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 74    Sexual activity in public

     (1)    A person commits an offence if—

           (a)           he is in a public place,

           (b)           he intentionally engages in an activity within subsection (3),

           (c)           the activity is sexual, and

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           (d)           he knows that, or is reckless as to whether, someone (other than a

person he reasonably believes to be a willing observer) will see any part

of him or of another participant.

     (2)    A person commits an offence if—

           (a)           he is not in a dwelling,

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           (b)           he intentionally engages in an activity within subsection (3),

           (c)           the activity is sexual, and

           (d)           he knows that, or is reckless as to whether, someone in a public place

(other than a person he reasonably believes to be a willing observer)

will see any part of him or of another participant.

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     (3)    An activity is within this subsection if it involves—

           (a)           a person, with a part of that person’s body or anything else, penetrating

that or another person’s vagina or anus;

           (b)           a person, with his penis, penetrating the mouth of another person;

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    34

 

           (c)           a person touching that person’s vagina, anus or penis, other than

through that person’s clothes; or

           (d)           a person touching another person’s vagina, anus or penis, other than

through the other person’s clothes.

     (4)    In this section—

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                    “participant” means, in relation to an activity within a paragraph of

subsection (3), a person referred to in that paragraph;

                    “public place” means—

                  (a)                 a place to which the public or any section of the public has or is

permitted to have access, whether on payment or otherwise, or

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                  (b)                 the common parts of a building containing two or more

separate dwellings;

                    “willing observer” means a person who is willing to see the participants

engage in the activity within subsection (3).

     (5)    A person guilty of an offence under this section is liable, on summary

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conviction, to imprisonment for a term not exceeding 6 months or a fine not

exceeding level 5 on the standard scale or both.

Offences outside the United Kingdom

 75    Offences outside the United Kingdom

     (1)    Subject to subsection (2), any act done by a person in a country or territory

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outside the United Kingdom which—

           (a)           constituted an offence under the law in force in that country or

territory, and

           (b)           would constitute a sexual offence to which this section applies if it had

been done in England and Wales or in Northern Ireland,

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            constitutes that sexual offence under the law of that part of the United

Kingdom.

     (2)    Proceedings by virtue of this section may be brought only against a person who

was on 1st September 1997, or has since become, a British citizen or resident in

the United Kingdom.

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     (3)    An act punishable under the law in force in any country or territory constitutes

an offence under that law for the purposes of this section, however it is

described in that law.

     (4)    Subject to subsection (5), the condition in subsection (1)(a) is to be taken to be

met unless, not later than rules of court may provide, the defendant serves on

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the prosecution a notice—

           (a)           stating that, on the facts as alleged with respect to the act in question,

the condition is not in his opinion met,

           (b)           showing his grounds for that opinion, and

           (c)           requiring the prosecution to prove that it is met.

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     (5)    The court, if it thinks fit, may permit the defendant to require the prosecution

to prove that the condition is met without service of a notice under subsection

(4).

     (6)    In the Crown Court the question whether the condition is met is to be decided

by the judge alone.

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Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    35

 

     (7)    Schedule 1 lists the sexual offences to which this section applies.

General

 76    Offences against children under 13

Where this section applies to an offence, a person may not be convicted of that

offence if what is proved against him is an offence under section 2, 4, 6 or 8

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(offences against children under 13).

 77    “Consent”

For the purposes of this Part, a person consents if he agrees by choice, and has

the freedom and capacity to make that choice.

 78    Presumptions about the absence of consent

10

     (1)    If in proceedings for an offence to which this section applies it is proved that

the defendant did the relevant act, that any of the circumstances specified in

subsection (3) existed, and that the defendant knew that those circumstances

existed—

           (a)           the complainant is to be taken not to have consented to the relevant act

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unless sufficient evidence is adduced to raise an issue as to whether the

complainant consented, and

           (b)           the defendant is to be taken not to have believed that the complainant

consented unless the defendant proves that he did believe it.

     (2)    Nothing said or done in the course of cross-examination of the complainant is

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to be taken to be sufficient to raise an issue for the purposes of subsection (1)(a),

unless it amounts to an admission that the complainant consented.

     (3)    The circumstances referred to in subsection (1) are that—

           (a)           any person was, at the time of the relevant act or immediately before it

began, using violence against the complainant or causing the

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complainant to fear that immediate violence would be used against

him;

           (b)           any person was, at the time of the relevant act or immediately before it

began, causing the complainant to fear that violence was being used, or

that immediate violence would be used, against another person;

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           (c)           the complainant was, and the defendant was not, unlawfully detained

at the time of the relevant act;

           (d)           the complainant was asleep or otherwise unconscious at the time of the

relevant act;

           (e)           because of the complainant’s physical disability, the complainant

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would not have been able at the time of the relevant act to communicate

to the defendant whether the complainant consented.

     (4)    In subsection (3)(a) and (b), the reference to the time when the relevant act

began is, in the case of an act which is one of a continuous series of sexual

activities, a reference to the time when the first sexual activity began.

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     (5)    Subsection (6) applies if, in proceedings for an offence to which this section

applies—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    36

 

           (a)           it is proved that the defendant did the relevant act and that the

complainant did not consent to it, and

           (b)           the only evidence adduced of circumstances from which the defendant

might have formed a belief that the complainant consented is—

                  (i)                 evidence of anything said or done by a third party, or

5

                  (ii)                evidence of circumstances from which the defendant could not

have formed such a belief except on the grounds that they were

consistent with anything said or done by a third party.

     (6)    Where this subsection applies, it is to be conclusively presumed—

           (a)           that a reasonable person would in all the circumstances have doubted

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whether the complainant consented, and

           (b)           that the defendant did not act in a way that a reasonable person would

consider sufficient in all the circumstances to resolve such doubt.

     (7)    If in proceedings for an offence to which this section applies it is proved that

the defendant did the relevant act and that any of the circumstances specified

15

in subsection (8) existed, it is to be conclusively presumed—

           (a)           that the complainant did not consent to the relevant act, and

           (b)           that the defendant did not believe that the complainant consented to

the relevant act.

     (8)    The circumstances referred to in subsection (7) are that—

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           (a)           the defendant intentionally deceived the complainant as to the nature

or purpose of the relevant act;

           (b)           the defendant intentionally induced the complainant to consent to the

relevant act by impersonating a person known personally to the

complainant.

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 79    Section 78: relevant acts

In relation to an offence to which section 78 applies, references in that section

to the relevant act and to the complainant are to be read as follows—

 

Offence

 

Relevant Act

 
 

An offence under section 1 (rape).

 

The defendant intentionally

 

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penetrating, with his penis, the

 
   

vagina, anus or mouth of another

 
   

person (“the complainant”).

 
 

An offence under section 3

 

The defendant intentionally

 
 

(assault by penetration).

 

penetrating, with a part of his body

 

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or anything else, the vagina or

 
   

anus of another person (“the

 
   

complainant”), where the

 
   

penetration is sexual.

 
 

An offence under section 5

 

The defendant intentionally

 

40

 

(sexual assault).

 

touching another person (“the

 
   

complainant”), where the touching

 
   

is sexual.

 
 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

    37

 
 

Offence

 

Relevant Act

 
 

An offence under section 7

 

The defendant intentionally

 
 

(causing a person to engage in

 

causing another person (“the

 
 

sexual activity without consent).

 

complainant”) to engage in an

 
   

activity, where the activity is

 

5

   

sexual.

 
 

 80    “Sexual”

For the purposes of this Part, penetration, touching or any other activity is

sexual if—

           (a)           from its nature, a reasonable person would consider that it may (at

10

least) be sexual, and

           (b)           a reasonable person would consider that it is sexual because of its

nature, its circumstances or the purpose of any person in relation to it,

or all or some of those considerations.

 81    Part 1: general interpretation

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     (1)    The following apply for the purposes of this Part.

     (2)    Penetration is a continuing act from entry to withdrawal.

     (3)    References to a part of the body include references to a part surgically

constructed (in particular, through gender reassignment surgery).

     (4)    “Mental disorder” has the meaning given by section 1 of the Mental Health Act

20

1983 (c. 20).

     (5)    “Photograph” and “pseudo-photograph” have the same meaning as in the

Protection of Children Act 1978 (c. 37).

     (6)    Touching includes touching—

           (a)           with any part of the body,

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           (b)           with anything else,

           (c)           through anything,

            and in particular includes touching amounting to penetration.

     (7)    “Vagina” includes vulva.

     (8)    In relation to an animal, references to the vagina or anus include references to

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any similar part.

Part 2

Notification and orders

Notification requirements

 82    Persons becoming subject to notification requirements

35

     (1)    A person is subject to the notification requirements of this Part for the period

set out in section 84 (“the notification period”) if—

 

 

 
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