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Session 2002 - 03
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Sexual Offences Bill [HL]


 

These notes refer to the Sexual Offences Bill [HL]
as introduced in the House of Lords on 28th January 2003 [HL Bill 26]

SEXUAL OFFENCES BILL [HL]


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Sexual Offences Bill [HL] as introduced in the House of Lords on 28th January 2003. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Government published the White Paper Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences (Cm 5668) in November 2002. It is available on the Home Office website at www.sexualoffencesbill.homeoffice.gov.uk. The White Paper set out the Government's intentions for reforming the law on sexual offences and for strengthening measures to protect the public from sexual offending. The Government's proposals are based on the recommendations made by two review teams and subsequent public consultation. The recommendations made by the review teams were published in two documents: Review of Part 1 of the Sex Offenders Act 1997 (2001) and Setting the Boundaries (2000). These together with a summary of the public's responses and the Government's response to each of the recommendations can also be found at www.sexualoffencesbill.homeoffice.gov.uk

SUMMARY

4.     The Bill is in three Parts—

  • Part 1 makes new provision about sexual offences. It covers the non-consensual offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. It covers child sex offences and offences involving an abuse of a position of trust towards a child. Familial child sex offences and offences involving adult relatives are provided for, as are offences designed to give protection to person with amental disorder or a learning disability. The age of a "child" in the Protection of Children Act 1978 has been amended to 18 and exceptions made to child pornography offences. It covers offences relating to prostitution, child pornography, and trafficking. It provides for preparatory offences, such as administering a substance with intent to commit a sexual offence, and a number of miscellaneous offences, such as voyeurism and intercourse with an animal. Clause 75 creates extra-territorial jurisdiction to some of the offences in Part 1. Finally, Part 1 gives a statutory definition of "consent" and "sexual" activity and provides for presumptions about the absence of consent.

  • Part 2 contains measures for protecting the public from sexual offending. Part 1 of the Sexual Offenders Act 1997 has been re-enacted with a number of amendments. A notification order enabling the notification requirements to be applied to offenders with convictions abroad has been created. Sex Offender Orders (s.2 of Crime and Disorder Act 1998) and restraining orders (s.5 of Sex Offenders Act 1997) have been combined into a new civil preventative order - a Sexual Offences Prevention Order. Risk of Sexual Harm Orders, specifically designed to protect children from sexual harm, have been created. The re-enactment of the Sex Offenders Act 1997 applies to Scotland together with the notification order. The Sexual Offences Prevention Order and the Risk of Sexual Harm Orders do not apply to Scotland.

  • Part 3 contains general provisions relating to the Bill, including minor and consequential amendments and commencement provisions.

COMMENTARY ON CLAUSES

Part 1: Sexual Offences

Clause 1: Rape

     5.     Clause 1 makes it an offence for a person (A) intentionally to penetrate with his penis the vagina, anus or mouth of another person (B) without that person's consent, if either he does not believe that B consents (subsection (2)), or if a reasonable person would, in all the circumstances, doubt whether B consents and A does not act in a way that a reasonable person would consider sufficient to resolve that doubt (subsection (3)). Subsection (2) gives two examples of when A does not believe that B consents. A further example would be when A gives some thought as to whether B consents but then deliberately puts the matter out of his mind. This and the offence in clause 2 are the sole offences that can only be committed by a male, because they relate to penile penetration. Subsection (4) provides that clause 78 applies to this offence. Clause 78 deals with presumptions as to lack of consent and lack of belief in consent. Clause 2: Rape of a child under 13

6.     Clause 2 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under the age of 13. Whether or not the child consented to this act is irrelevant.

Clause 3: Assault by penetration

     7.     Clause 3 covers the situation where a person (A) intentionally penetrates the vagina or anus of another person (B). The offence is committed where the penetration is by a part of A's body (for example, a finger) or anything else, (for example, a bottle); where the penetration is sexual (as defined in clause 80), so that it excludes, for example, intimate searches and medical procedures; where B does not consent to the penetration; and where A does not believe that B consents (subsection (2) - what is said in the note to clause 1 about subsection (2) also applies here), or if a reasonable person would, in all the circumstances, doubt whether B consents and A does not act in a way that a reasonable person would consider sufficient to resolve that doubt (subsection (3)). This and all subsequent offences in the Bill can be committed by a male or female, against a male or female. Subsection (4) provides that clause 78 applies to this offence. Clause 78 deals with presumptions as to lack of consent and lack of belief in consent.

Clause 4: Assault of a child under 13 by penetration

8.     Clause 4 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under the age of 13 with a part of his body, such as a finger, on anything else, such as bottle or other object. The penetration must be sexual, as defined in clause 80. Whether or not the child consented to the act is irrelevant.

Clause 5: Sexual assault

     9.     Clause 5 makes it an offence for a person (A) intentionally to touch sexually another person (B) without that person's consent, if he either does not believe that B consents (subsection (2) - what is said in the note to clause 1 about subsection (2) also applies here) or if a reasonable person would, in all the circumstances, doubt whether B consents and A does not act in a way that a reasonable person would consider sufficient to resolve that doubt (subsection (3)). "Touching" is defined at clause 81(6); "sexual" is defined at clause 80. The effect of the definitions is that the offence covers a wide range of behaviour including, for example, rubbing up against someone's private parts through their clothes for sexual gratification. Subsection (4) provides that clause 78 applies to this offence. Clause 78 deals with presumptions as to lack of consent and lack of belief in consent.

Clause 6: Sexual assault of a child under 13

     10.     Clause 6 makes it an offence for a person to touch sexually a child under the age of 13. The definitions of touching and sexual are the same as for clause 5. Whether or not the child consented to the act is irrelevant.

     Clause 7: Causing a person to engage in sexual activity without consent

     11.     Clause 7 makes it an offence for a person (A) intentionally to cause another person (B) to engage in sexual activity (as defined in clause 80) without that person's consent, if he either does not believe that B consents (subsection (2) - what is said in the note to clause 1 about subsection (2) also applies here) or if a reasonable person would in all the circumstances doubt whether B consents and he does not act in a way that a reasonable person would consider sufficient to resolve that doubt (subsection (3). A may cause B to engage in sexual activity with A (for example, a woman who compels a man to penetrate her); on B himself (for example, where one person forces a second to masturbate); or another person (for example, where one person requires someone to masturbate a third person). Subsection (4) provides that clause 78 applies to this offence. Clause 78 deals with presumptions as to lack of consent and lack of belief in consent.

Clause 8: Causing a child under 13 to engage in sexual activity

     12.     Clause 8 makes it an offence for a person intentionally to cause a child under the age of 13 to engage in sexual activity. The offence covers the same situations as clause 7 except that, for this offence, whether or not the child consented to engaging in the sexual activity is irrelevant.

Clause 9: Sexual activity with a child

13.     Clause 9 makes it an offence for a person aged 18 or over intentionally to touch a child aged between 13 and15 where the touching is sexual and where the person does not reasonably believe the child to be 16 or over. "Touching" is defined at clause 81(6) and covers all forms of physical contact including penetration; "sexual" is defined at clause 80. The effect of subsection (2) is that this offence applies only where the child is at least 13 at the time of the sexual touching, since sexual activity involving a child under 13 must be charged under clause 2, 4 or 6. Whether or not the child consented to the activity is irrelevant.

Clause 10: Causing a child to engage in sexual activity

     14.     Clause 10 makes it an offence for a person (A) aged 18 or over, intentionally to cause a child aged 13 to 15 to engage in sexual activity (as defined at clause 80) where A does not reasonably believe the child to be 16 or over. The activity may be carried out on A (for example, where A causes the child to have sexual intercourse with him), the child himself (for example, where A causes the child to strip for A's sexual gratification) or on a third person (for example, where A causes the child to have sexual intercourse with A's friend). The effect of subsection (2) is that this offence applies only where the child is at least 13 at the time of the sexual activity, since a person who causes a child under 13 to engage in sexual activity must be charged under clause 8. Whether or not the child consented to the activity is irrelevant.

Clause 11: Inciting a child to engage in sexual activity

     15.     Clause 11 makes it an offence for a person (A) aged 18 or over, intentionally to incite a child aged under 16 to engage in sexual activity (as defined in clause 80). The offence is committed where the incitement takes place even if the sexual activity itself does not. A may incite the child to engage in sexual activity with A (for example, where A incites the child to masturbate him), the child himself (for example, where A incites the child to strip for A's sexual gratification) or on a third person (for example, where A incites the child to have sexual intercourse with A's friend). Unlike the previous two offences, this offence applies to all children under 16, not just those between 13 to 15. This is because there is no specific offence covering children under 13 in respect of incitement. So if inciting a child under 13 to engage in sexual activity were not covered by this offence, it would not be covered at all. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. But this does not apply where the child is under 13.

Clause 12: Engaging in sexual activity in the presence of a child

     16.     Clause 12 makes it an offence for a person (A) aged 18 or over intentionally to engage in sexual activity (as defined in clause 80) in the presence of a child aged under 16 to obtain sexual gratification. The offence is committed if A knows or believes that the child is aware he is engaging in the activity or intends that the child should be aware of this. This offence would cover, for example, A masturbating himself in front of a child, or A masturbating himself in the presence of the child to whom he is describing what he is doing perhaps because the child is covering his face. This offence applies to all children under 16. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. But this does not apply where the child is under 13.

Clause13: Causing a child to watch a sexual act

     17.     Clause 13 makes it an offence for a person (A) intentionally to cause a child aged under 16, for the purpose of the sexual gratification of A, to watch a third person engaging in sexual activity or to look at a photograph or pseudo-photograph of a person engaging in sexual activity. The definition of sexual activity is at clause 80. Photograph and pseudo-photograph are defined by reference to the Protection of Children Act 1978 (clause 81(5)). A person who, for his own sexual gratification, forces a child to watch two people have sex or who forces a child to watch a pornographic film, would commit this offence. This offence applies to all children under 16. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. But this does not apply where the child is under 13.

Clause 14: Child sex offences committed by children or young persons

     18.     Clause 14 makes it an offence for a person aged under 18 to do anything that would be an offence under any of clauses 9 to13 if he were aged 18 or over. The purpose of this offence is to provide a lower penalty where the offender is aged under 18.

Clause 15: Arranging or facilitating commission of a child sex offence

     19.     Clause 15 makes it an offence for a person intentionally to arrange or facilitate any action which either will involve an offence being committed against a child under any of clauses 9 to14 or would do so but for something that makes the commission of the offence impossible. An example of the first limb of the offence is where the person approaches an agency requesting the agency to procure a child for sex. The offence is committed whether the child is procured for the person who approaches the agency or for anyone else and whether or not the sex takes place. An example of the second limb of the offence is where, unbeknown to the participants, a policeman assumes the role of the child, thus making the commission of the offence impossible. Clauses 9 and 10 only apply to children who are 13 or over. Subsection (2) disapplies this restriction where the offence of arranging or facilitating the commission of a child sex offence is concerned.

Clause 16: Sections 9 to 15: marriage exception

20.     Clause 16 provides a defence of marriage with respect to clauses 9 to 14. The effect is that A is not guilty of one of these offences if he proves that he and the child were lawfully married at the time of the alleged offence, the activity involved solely A and the child and did not involve a photograph or pseudo-photograph (defined in clause 81) of any other person engaged in sexual activity. Thus A will have a defence if he proves he was lawfully married to a 15 year old at the time he had sexual intercourse with her. This might arise, for example, where they are foreign nationals who were married in another country. However, there is no defence if the conduct involves others, for example, A causes his wife aged 15 to engage in sexual activity with other men. Clause 16 also applies to the arranging or facilitating offence (clause 15). Thus a person who arranges or facilitates child sex between two people who are married to each other will not commit an offence under clause 15.

Clause 17: Meeting a child following sexual grooming etc.

     21.     Clause 17 makes it an offence for a person (A) aged 18 or over to meet intentionally or to travel with the intention of meeting a child aged under 16, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion in any part of the world. An offence is not committed if A reasonably believes the child to be 16 or over. The clause is intended to cover situations where an adult establishes contact with a child for example through meetings, telephone conversations or communications on the Internet with the intention of gaining the child's trust and confidence so that he can arrange to meet the child for the purpose of committing a "relevant offence" against the child. The course of conduct prior to the meeting may have an explicitly sexual content, such as the defendant entering into conversations with the child about the sexual acts he wants to engage her in when they meet or sending images of adult pornography. However, the meetings or communication need not have an explicitly sexual content and could for example simply be A giving the child swimming lessons or meeting her incidentally through a friend. The offence will be complete either when A meets the child or when he travels to the pre-arranged meeting with the intent to commit a relevant offence against the child. The planned offence does not have to take place. The evidence of the intent may be drawn from the communications between A and the child before the meeting or may be drawn from other circumstances, for example A travels to the meeting with ropes, condoms and lubricants. Subsection (2)(a) provides that A's previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example A emailing the child from abroad, A and the child speaking on the telephone in Thailand or A meeting the child in Portugal. The meeting itself must take place (or be arranged to take place in relation to the 'travelling to' limb of the offence) in England or Wales or Northern Ireland.

Clause 18: Abuse of position of trust: sexual activity with a child

Clause 19: Abuse of position of trust: causing a child to engage in sexual activity

Clause 20: Abuse of position of trust: inciting a child to engage in sexual activity

Clause 21: Abuse of position of trust: sexual activity in the presence of a child

Clause 22: Abuse of position of trust: causing a child to watch a sexual act

22.     These clauses re-enact and amend the offence of abuse of position of trust under sections 3 and 4 of the Sexual Offences (Amendment) Act 2000. The clauses each provide that it is an offence for a person (A) aged 18 or over to intentionally behave in certain ways in relation to a child aged under 18, where A is in a position of trust (as defined in clause 23) in respect of the child. The prohibited behaviour in each of the clauses is identical to that prohibited by the child sex offences in clauses 9,10,11,12 and 13 respectively, except that for the abuse of position of trust offences, the child may be 16 or 17. Like the child sex offences, the first two offences do not apply to children under 13 (subsection (4) of clauses 18 and 19). However, in contrast to the child sex offences, these offences put the burden on A to prove on the balance of probabilities that he believed the child to be 18 or over (subsection (2) of each clause), although the prosecution may still prove that his belief was unreasonable. Where the child is under 13, the offence is committed regardless of any belief A might have in relation to the child's age. Subsection (3) of each clause provides that in relation to the first 4 categories of position of trust set out at clause 23, A will not commit an offence if he proves on the balance of probabilities that he does not know that he is in such a position of trust unless the prosecution prove that he could reasonably have been expected to know this (or the prosecution prove that he was in a position of trust in relation to one of the other circumstances). These 4 categories all concern situations where A looks after persons under 18 at an institution and the child is at that institution. This subsection is designed to cover cases where for example the institution where A works is very large or has a number of different sites, and A may not therefore know that the child is at the institution.

Clause 24: Sections 18 to 22: marriage exception

     23.     Clause 24 provides that A will not commit an offence under the above clauses if he can prove that, at the time of the sexual activity, he and the child were lawfully married.

Clause 23: Positions of trust

Clause 25: Positions of trust: interpretation

     24.     Clause 23 defines "position of trust" for the purposes of the offences in clauses 18, 19, 20, 21 and 22. The majority of the conditions in subsections (2) to (8) use the term "looks after". This term is defined, in broad terms, at subsection (2) of clause 24. The term "looks after on an individual basis" is also defined - at subsection (3) of that clause. Subsection (1) of clause 23 also provides a power for the Secretary of State to specify further conditions that will constitute a position of trust. The power is subject to the affirmative Parliamentary procedure (clause 123(2)). Subsection (2) may apply where the child is detained following conviction for a criminal offence, for example in a secure training centre or a young offenders institution. Subsection (3) applies to a wide range of settings in which such young people are accommodated, including foster care; residential care (local authority, private or voluntary, including secure accommodation); and semi-independent accommodation. Subsection (4) covers places where young people with medical conditions, physical or learning disabilities, mental illness or behavioural problems might be accommodated and includes NHS, private and voluntary accommodation. Subsection (5) covers where the child is in full time education in an educational institution. This expression is further explained at subsection (4) of clause 24. Where the child is registered at a college but receives education at another college with which the former has arrangements, A will still be in a position of trust in relation to the child where A works at the former college. Subsection (6) includes persons such as Connexions personal advisers ("CPAs"). Contact "by other means" (clause 24(3)) is designed to include persons such as CPAs whose normal means of providing support to children is by telephone or via the Internet. Subsection (7) covers personal advisers appointed by a local authority under the Children Act 1989. Such personal advisers generally provide help and support to children aged 16-17 who have been in local authority care. Subsection (8) includes adults who supervise children under bail supervision, a community sentence (for example a probation order, combination order, community service order, supervision order, attendance centre order) and those under conditions following release from detention following a criminal conviction (e.g. those released on licence from a young offenders institution) This would include members of Youth Offending Teams provided they have sufficient contact and connection with the child or someone providing counselling or drug rehabilitation services to the child pursuant to the terms of a court order.

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

     25.     Clause 26 provides A with a defence to abuse of position of trust offences if he can prove that his sexual relationship with the child pre-dated his relationship of trust with the child. So if A could prove that he and the child had a sexual relationship before A went to work at the school at which the child is a pupil, he would not commit an offence by continuing that sexual relationship. The effect of subsection (2) is to limit this to the situation where the sexual relationship that pre-dated the relationship of trust was lawful, so it would not cover for example a relationship with a child of under 16.

Clause 27: Sections 18 to 22: existing sexual relationships

     26.     Clause 27 provides A with a defence to the abuse of position of trust offences in certain cases where A and the child were in an existing sexual relationship immediately before commencement of the relevant clause. These cases are where A is in a position of trust in relation to the child only by virtue of subsections (6), (7) or (8) of clause 23. This transitional provision does not apply to the positions of trust in subsections (2), (3), (4) and (5) of the same clause as sexual activity in these circumstances was already unlawful behaviour under the existing abuse of position of trust offence under sections 3 and 4 of the Sexual Offences (Amendment) Act 2000. The exclusion will not be available where it would have been unlawful for A and B to have had sexual intercourse in the pre-existing relationship, for example because B was under 16.

Clause 28: Sexual activity with a child family member

27.     Clause 28 makes it an offence for a person (A) intentionally to touch a family member (as defined in clause 30) aged 13-17 where the touching is sexual. The definition of touching is at clause 81 (6). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at clause 80. There is a defence for A if (where the child is at least 13) he proves on the balance of probabilities that he believed the child to be 18 or over (subsection (2)) and if he proves on the balance of probabilities that he did not know the child was his family member (subsection (3). However, in both cases, it is still open to the prosecution to prove that this belief was unreasonable. This might apply where A has not met the child before and therefore does not realise that she is his half-sister. The effect of subsection (4) is that this offence applies only where the child family member is over 13 at the time of the sexual touching, since sexual activity involving a child under 13 must be charged under clause 2, 4 or 6. Whether or not the child consented to the touching is irrelevant.

 
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