House of Lords - Explanatory Note
Sexual Offences Bill [HL] - continued          House of Lords

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Clause 29: Inciting a child family member to engage in sexual activity

     28.     Clause 29 makes it an offence for a person (A) intentionally to incite a child family member (defined in clause 30) aged 13 to 17 either to touch A or to allow himself to be touched by A, 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. An example of this offence would be where A encourages B to masturbate A or cajoles B into agreeing to have sex with him. The offence is committed whether or not the sexual touching takes place. So where in the above example A has encouraged B to masturbate him, but the masturbation does not take place because another person enters the room, the offence is nevertheless complete. The two defences described in relation to clause 28 apply to this clause too (subsections (2) and (3)). Unlike the offence under clause 28, this offence applies to all child family members under 18, not just those aged 13 to 17. This is because there is no other equivalent offence.

Clause 30: Family relationships

29.     Clause 30 lists the relationships relevant for the purposes of clauses 28 and 29. Section 67 of the Adoption and Children Act 2002 provides that an adoptive child is the child of the adoptive parents and not the biological parents. Adoptive relationships are therefore covered by subsection (1)(a). The categories at subsections (2) to (4) also apply (by virtue of subsection (1)(b)) to the adoptive child's biological family relationships. These relationships fall into three categories: The first category of relationships is listed in subsection (2). Persons within this category will always be family members for the purposes of clauses 28 and 29. Definitions of the relationships are at subsection (5)(a) to (c). Even where there is no blood relationship and the relationship can therefore cease - in the cases of stepparents, stepchildren and foster parents - this offence may be committed for as long as the victim is under 18. So for example even where A is no longer the child's foster parent, A will commit an offence by having sex with the child while the child is under 18. The second category of relationships is listed in subsection (3). Persons in this category will only be family members for the purposes of clauses 28 and 29 if A lives, or has lived, in the same household as the child or is, or has been, regularly involved in caring for, training or supervising or being in sole charge of the child. The definition of "partner" is at subsection (5)(d). An example within this category is a person who lives or has lived in the same house as his first cousin who is under 18. If the cousins had never lived in the same household, A would not commit this offence. As with the first category, if the relationship ceases (for example A ceases to be the partner of the child's mother), the offence may still be committed while the child is under 18. An example of the third category of relationships (at subsection (4)) would be where a child is living in the same household as the au pair who looks after him. Unlike with the first two categories, if the au pair were to leave the household and/or cease to have responsibility for the child, then the relationship would no longer be relevant for the purposes of clause 28 or 29.

Clause 31: Sections 28 and 29: marriage exception

     30.     This clause provides A with a defence to the offences under clauses 28 and 29 if he can prove that at the time of the act he was lawfully married to the child.

Clause 32: Sections 28 and 29: existing sexual relationships

     31.     This clause provides A with a defence to the offences under clauses 28 and 29 if he can prove that his sexual relationship with the child pre-dated the commencement of the relevant clause of the Bill. The effect of subsection (2) is to limit this to the situation where the sexual relationship was lawful.

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

Clause 34: Causing a person with a mental disorder or learning disability to engage in sexual activity

Clause 35: Inciting a person with a mental disorder or learning disability to engage in sexual activity

Clause 36: Engaging in sexual activity in the presence of a person with a mental disorder or learning disability

Clause 37: Causing a person with a mental disorder or learning disability to watch a sexual act

32.     All the offences in these clauses are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder or learning disability and because of that does not have the capacity to consent to the sexual activity. The definition of mental disorder is at clause 81(4); the definition of sexual activity is at clause 80. The clauses refer to B's lack of capacity to consent as B being unable to refuse, and subsection (2) of each clause contains a definition of what is meant by B being unable to refuse. The offences are divided according to the different types of sexual activity (the types of sexual activity covered are the same as for the child sex offences (clauses 9 to 13). Clause 33 covers touching, which is broadly defined at clause 81(6) to include any type of physical contact including penetrative contact. Clause 34 covers the situation where A causes B to engage in sexual activity, for example, where A causes B to have sexual intercourse with him, where A causes B to undress for A's sexual gratification, or where A causes B to have sexual intercourse with A's friend. Clause 35 covers the situation where A incites B to engage in sexual activity. The difference between this clause and clause 34 is that A commits an offence even if the incitement does not result in B engaging in sexual activity. Clause 36 covers the situation where A engages in sexual activity in the presence of B, for example, where A has sexual intercourse in the presence of B, for the purpose of obtaining sexual gratification. The offence is only committed, however, where A knows or believes that B is aware of the sexual activity or intends him to be aware of it. B might be aware of the sexual activity because he is watching it at A's behest or because A is describing what he is doing to B. Clause 37 covers the situation where A causes B 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 for A's sexual gratification. Photograph and pseudo-photograph are defined by reference to the Protection of Children Act 1978 (clause 81(5)). The effect of subsection (3) of the first two offences is to exclude children under 13 from these offences, since sexual activity of the type covered by these clauses with children under 13 must instead be charged under clauses 2, 4, 6 or 8.

Clause 38: Inducement threat or deception to procure sexual activity with a person with a mental disorder or learning disability

Clause 39: Causing a person with a mental disorder or learning disability to engage in sexual activity by inducement, threat or deception

Clause 40: Causing a person with a mental disorder or learning disability to agree to engage in sexual activity by inducement, threat or deception

Clause 41: Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder or learning disability

Clause 42: Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception

     33.     Like the previous set of clauses, the offences in these clauses are concerned with the situation where a person (A) involves another person (B) in sexual activity where the B has a mental disorder or learning disability. However, for these offences, there is no need to prove that B lacks the capacity to consent. Instead, the offences address the situation where A uses inducements, threats or deceptions to obtain B's agreement to the sexual activity. The definition of mental disorder is at clause 81(4); the definition of sexual activity is at clause 80. An inducement might be A promising B presents of anything from sweets to a holiday; a threat might be A stating that he will hurt a member of B's family; and a deception might be A stating that B will get into trouble if he does not engage in sexual activity, or persuading him that it is expected that friends should engage in sexual activity. The division of the clauses according to the type of sexual activity involved is the same as for the previous set of clauses. Thus, clause 38 covers the situation where A touches B and B agrees because of an inducement, threat or deception. Clause 39 covers the situation where A causes B to engage in sexual activity by means of an inducement, threat or deception. Clause 40 covers the situation where A causes B to agree to engage in sexual activity by means of an inducement, threat or deception. Clause 41 covers the situation where A engages in sexual activity in the presence of B for the purpose of obtaining sexual gratification where B agrees to be present because of an inducement, threat or deception. Clause 42 covers the situation where A causes B to watch a third party engaging in sexual activity or to look at a photograph or pseudo-photograph of a person engaging in sexual activity and B agrees to watch because of an inducement, threat or deception. The effect of subsection (2) of the first two offences is to exclude children under 13 from these offences, since sexual activity of the type covered by these clauses with children under 13 must instead be charged under clauses 2, 4, 6 or 8.

Clause 43: Care Workers: sexual activity with a person with a mental disorder or learning disability

Clause 44: Care Workers: causing sexual activity

Clause 45: Care workers: inciting a sexual activity

Clause 46: Care Workers: sexual activity in the presence of a person with a mental disorder or learning disability

Clause 47: Care Workers: causing a person with a mental disorder or learning disability to watch a sexual act

     34.     Like the previous two sets of clauses, the offences in these clauses are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder or learning disability. The difference here is that A and B must be in a relationship of care. The definition of mental disorder is at clause 81(4); the definition of sexual activity is at clause 80. The relationships of care that are covered by these offences are set out at clause 48. The clauses are divided according to the different types of sexual activity involved. The division is the same as for clauses 33 to 37 and what is said in the notes for those clauses about the different types of sexual activity covered applies here too. The only difference between these clauses and clauses 33 to 37 (apart from the fact that these clauses cover a relationship of care and those clauses cover a person who does not have the capacity to consent) are the provisions about A's awareness of B's mental disorder or learning disability. In clauses 33 to 37, it is for the prosecution to prove that A knew or could reasonably be expected to have known that B has a mental disorder or learning disability (and that because of he was likely to lack the capacity to consent). For these clauses, the burden is on A to prove on the balance of probabilities that he did not know that B had a mental disorder or learning disability. If he proves this, it is then for the prosecution to prove that he could reasonably have been expected to know about B's mental disorder or learning disability. The effect of subsection (3) of the first two offences is to exclude children under 13 from these offences, since sexual activity of the type covered by these clauses with children under 13 must instead be charged under clauses 2, 4, 6 or 8.

Clause 48: Care Workers: interpretation

     35.     This clause defines a relationship of care for clauses 43 to 47. An example of a relationship covered by subsection (2) is where A is a member of staff in a care home and B is a resident there. An example of a relationship covered by subsection (3) is where A is a receptionist at the clinic that B attends every week. An example of a relationship covered by subsection (4) is where A takes B on outings every week. In all cases, A must have regular face to face contact with B.

Clause 49: Sections 43 to 47: marriage exception

     36.     This clause provides A with a defence to the offences under clauses 43 to 47 if he proves he was lawfully married at the time of the sexual activity to B.

Clause 50: Sections 43 to 47: sexual relationships which pre-date care relationships

     37.     This clause provides A with a defence to the offences under clauses 43 to 47 if he proves that his sexual relationship with B pre-dated his relationship of care with B. So if A could prove that he and B had a sexual relationship before A went to work at the care home in which B lives, 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 care was lawful.

Clause 51: Sections 43 to 47: existing sexual relationships

     38.     This clause provides A with a defence to the offences under clauses 43 to 47 if he can prove that his sexual relationship with B pre-dated the commencement of the clause of the Bill. The effect of subsection (2) is to limit this to the situation where the sexual relationship was lawful.

Clause 52: Indecent photographs of persons aged 16 or 17

39.     This clause redefines a "child" for the purposes of the Protection of Children Act 1978 as a person under 18 years, rather than 16 years, of age. This means the offences of taking, making, permitting to take, distribution, showing, possessing with intent to distribute, and advertising indecent photographs or pseudo-photographs of children will now also be applicable where the photographs concerned appear to be of children of 16 or 17 years of age. The same applies to the offence of possessing an indecent photograph or pseudo-photograph of a child at section 160 of the Criminal Justice Act 1988. However, the clause provides an exception to allow an indecent photograph of a 16 or 17 year old to be taken, made or permitted to be taken with the consent of the child concerned. There is also an exception to allow the person who took or made the photograph to possess it or to show or give it to the child, but in all cases the child must consent to this. Thus a person married to or in a relationship with a 17 year old would not commit an offence in possessing an indecent photograph of his partner if his partner consented to the possession. These changes do not apply to photographs taken or made before commencement.

Clause 53: Criminal investigations or proceedings

40.     This clause creates a limited exception to the offence of "making" an indecent photograph or pseudo-photograph of a child, under section 1(1)(a) of the Protection of Children Act 1978. "Making", for example, covers the situation where a person downloads an image from the Internet or copies a computer hard drive. This clause creates an exception where it is necessary to make an indecent photograph or pseudo-photograph (as defined at section 7 of the 1978 Act) for the purposes of criminal proceedings. It also creates an exception where a person has been authorised to make an indecent photograph or pseudo-photograph, and subsection (2) provides that an authorisation may only be given if it is necessary for the purposes of the prevention, detection or investigation of crime. Any authorisation given under this clause may contain conditions. These could be, for example, that the material will be kept under particular conditions, or disposed of in a particular way, or that a computer system on which it is stored will be subject to inspection by the authoriser or someone acting for him.

Clause 54: Paying for sex with a child

     41.     Clause 54 makes it an offence for any person (A) intentionally to obtain the sexual services of a child (B) aged under 18, where those services have been paid for or where payment has been promised. The offence covers where A pays for the services or promises payment either directly to B or to a third party (C) (for example where C is B's pimp) or where A knows that another person (D) has paid for the services or promised such payment. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over) However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. Subsection (2) defines payment widely. It covers not only a payment of money but any financial advantage. This includes the discharge of an obligation to pay, for example, B owes A a debt for a car but A agrees to waive the debt if B provides him with sexual services; the provision of goods or services gratuitously or at a discount, for example, where A provides drugs to B at no or reduced cost on condition that B provides sexual services to A.

Clause 55: Causing or inciting child prostitution or pornography

     42.     Clause 55 makes it an offence for a person (A) intentionally to cause or incite a child under 18 (B) into prostitution or involvement in pornography anywhere in the world, for the purpose of his own or someone else's gain or expected gain. The offence is aimed at persons who recruit into prostitution or pornography (whether on a one-off basis or longer term) those who are not currently involved in it. This could be where A makes a living from the prostitution of others and encourages new recruits to work for him or another (whether those recruits do actually then engage in prostitution or not). It could also cover where A and B live together and A compels B to become involved in pornography in order to pay their rent. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. The terms "pornography", "gain" and "prostitute" are defined in subsections (2), (3) and (4) respectively of clause 60. There is no requirement that the gain actually materialises - the act need only be done in the expectation of gain. So where A incites B to work as a prostitute, in the expectation that B will share any profits with A, the offence will be committed whether or not B does in fact share any profits with A.

Clause 56: Causing or inciting prostitution for gain

     43.     Clause 56 makes it an offence for a person (A) to intentionally cause or incite a person (B) into prostitution anywhere in the world where A does so for or in expectation of gain for himself or for a third party. Although this offence is not specifically limited to where B is aged 18 or over, it is aimed at cases where B is an adult, as the offence at clause 55 specifically covers cases where B is under 18. Although prostitution by adults aged 18 or over is not an offence in itself, this offence is intended to capture those who, for gain, recruit others into prostitution, whether this be by the exercise of force or otherwise. The terms "prostitute" and "gain" are defined at subsections (4) and (3) respectively of clause 60.

Clause 57: Controlling a child prostitute or a child involved in pornography

     44.     Clause 57 makes it an offence for a person (A) intentionally to control for, or in the expectation of, gain, the activities of a child (B) relating to his prostitution or pornography. The offence applies where the gain is directly for A's benefit or for that of a third party. The offence is committed even if B's activities in relation to prostitution or pornography are controlled for part of the time by another person. An example of the behaviour that might be caught by this offence is where A requires or directs B to charge a certain price or to use a particular hotel for her sexual services or to pose for a certain photographer and B complies with this request or direction. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any belief he may have about B's age. The terms "pornography", "gain" and "prostitute" are defined in subsections (2), (3) and (4) respectively of clause 60.

Clause 58: Controlling prostitution for gain

     45.     Clause 58 makes it an offence for a person (A) intentionally to control another person's activities relating to prostitution where A does so in the expectation of gain for himself or a third party. This offence covers the same behaviour as clause 57, but is limited to prostitution. Although this offence is not specifically limited to cases where the person controlled is aged 18 or over, it is aimed at those cases, as the offence at clause 57 specifically covers cases where the person controlled is under 18.

Clause 59: Arranging or facilitating child prostitution or pornography

     46.     Clause 59 makes it an offence for a person (A) to arrange or facilitate, for his own gain or expected gain or that of a third party, the involvement of a child (B) in prostitution or pornography. This offence would cover for example, delivering B to a place where he will be used to make pornography or making arrangements for B's prostitution to take place in a particular room. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. The terms "pornography", "gain" and "prostitute" are defined in subsections (2), (3) and (4) respectively of clause 60.

Clause 60: Sections 55 to 59: Interpretation

47.     Clause 60 defines, for the purposes of the above clauses the words "pornography", "gain", "prostitute", "prostitution" and "payment". The term "gain" is very widely defined and covers not only immediate financial advantage but also the goodwill of another person, which is likely to result in financial advantage in the future. So in relation to the offence at clause 55 for example, this would cover A inciting B to work as a prostitute for C, where A expects this will lead to C providing him (A) with cheap drugs at a later date.

Clause 61: Trafficking into the UK for sexual exploitation

48.     Clause 61 makes it an offence for a person (A) to intentionally to arrange or facilitate for, or in the expectation of, gain for himself or another the arrival into the UK of a person (B), where A intends to commit a relevant offence in respect of B in the United Kingdom or elsewhere or he intends to facilitate another person to do so. "Relevant offence" is defined at subsection (1) of clause 64. This offence re-enacts with amendments the offence in section 145 of the Nationality, Asylum and Immigration Act 2002. A may intend the relevant offence to be committed in any part of the world. This is to ensure that it will be an offence where, for example, A traffics B into the UK as an interim destination but intends to traffic B onto another country so he can be subjected to a sexual offence there. It may be either A or another person who A intends will commit the offence in respect of B. So for example, it will, be an offence for A to make arrangements to bring B into the UK with the intention that C will then, for gain, force B into prostitution in Germany (causing prostitution for gain will be a relevant offence). It is A's intent that is important, so the offence would still be committed if C never actually caused B to work as a prostitute. A will only commit the offence if he intends that B should be the victim of an offence. This will ensure that airline companies, road hauliers etc who are transporting someone without any criminal intent are not captured. The offence is intended however, to catch A if he is part of the enterprise of trafficking for sexual exploitation even if he is one link in a chain of fifty people helping to traffic B, provided that he is acting intentionally to traffic B for gain (whether A's or another's). Provided A has the necessary intent, it will cover for example his recruiting B in B's country of origin, his making arrangements for transport and food for B's journey, his forging of immigration documents for B and his other involvement in bringing B to the UK. The term "gain" has the same meaning as it does in subsection (3) of clause 60.

Clause 62: Trafficking within the UK for sexual exploitation

49.     Clause 62 makes it an offence for a person (A), for or in expectation of gain for himself or another, intentionally to arrange or facilitate travel within the UK of a person (B) where A intends to commit or to facilitate the commission of a relevant offence against B anywhere in the world, either during or after the journey. "Relevant offence" is defined at subsection (1) of clause 64. This offence is intended to apply both to UK nationals who are moved from one place to another in the UK to be sexually exploited as well as to others, including foreign nationals, who are, for example, trafficked to London from central Europe and then moved from London to another part of the UK to be sexually exploited. The term "gain" has the same meaning as it does in subsection (3) of clause 60.

Clause 63: Trafficking out of the UK for sexual exploitation

50.     Clause 63 makes it an offence for a person (A), for or in the expectation of gain for himself or another, intentionally to arrange or facilitate the departure from the UK of a person (B) where A intends to commit a relevant offence with respect to B after B's departure or A intends to facilitate the commission of a relevant offence with respect to B following B's departure. A may intend the relevant offence to take place in any part of the world. "Relevant offence" is defined at subsection (1) of clause 64. The offence is designed to cover the situation where B is in the UK, either because he is ordinarily resident here or because he has been trafficked here, but is then trafficked by A to another part of the world to be sexually exploited.

 
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Prepared: 29 January 2003