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

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Clause 64: Sections 61 to 63: interpretation and jurisdiction

     51.     Clause 64 gives for the purposes of the above clauses the definition of "relevant offence". A "relevant offence" is the purpose for which a trafficked person is trafficked. It includes acts done outside of England and Wales and Northern Ireland which, if they had been done in those countries would constitute an offence under Part 1 of the Bill or under section 1(1)(a) of the Protection of Children Act 1978 (or the equivalent offences in Northern Ireland). This includes an act which does not necessarily constitute an offence in the country in which it is done. It also defines the territorial extent and jurisdiction of the above clauses. The offences will cover behaviour committed by any person in the UK. They will also cover such behaviour outside the UK by any body incorporated under UK law such as a UK company. The offences may also be committed by any of the categories of British person listed at subsection (3) of the clause when abroad, irrespective of whether or not the activity is a criminal offence under the law in the country in which the activity is committed.

Clause 65: Administering a substance with intent

     52.     Clause 65 makes it an offence for a person (A) intentionally to administer a substance or to cause any substance to be taken by another person (B) where A knows that B does not consent to taking that substance and where A intends to stupefy or overpower B so that any person can engage in sexual activity involving B. The offence is intended to cover use of so-called "date rape drugs" administered without the victim's knowledge or consent but would also cover the use of any other substance with the relevant intention. It would cover A 'spiking' B's drinks with alcohol where B did not know he was consuming alcohol but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew that he was consuming alcohol. The substance may be administered to B in other ways, for example, by injection or by covering B's face with a cloth impregnated with the substance. The offence applies where A himself administers the substance to B or where A causes the substance to be taken by B, for example where A persuades a friend C to administer the substance to B because C knows B socially and can more easily slip it into B's drink so that A can have sex with B. The intended sexual activity need not involve A however. In the example given it could be intended that C or any other person would have sex with B. The term "sexual", used in this clause in the phrase "sexual activity", is defined in clause 80. The sexual activity in this offence could involve A having sexual intercourse with or masturbating B; could involve A causing B to commit a sexual act upon himself (for example, masturbation); or could involve B and a third party engaging in sexual activity together, regardless of whether the third party had administered the substance. The offence would be made out where A administers the substance or causes B to take it (with the relevant intent) regardless of whether any sexual activity took place, for example because a friend of B saw what was happening and intervened to protect B.

     Clause 66: Committing an offence with intent to commit a sexual offence

     53.     Clause 66 makes it an offence for a person (A) intentionally to commit any criminal offence with intent to commit any relevant sexual offence as defined in subsection (2). This offence is intended to capture where A commits a criminal offence but does so with the intention of committing a subsequent sexual offence, but regardless of whether or not the substantive sexual offence is committed. It would apply, for example, where A kidnaps B so that he can rape him but is caught by the police before committing the rape. It would also apply where A detained B in his flat with this intention or assaulted B to subdue him so that he could more easily rape him. If A does commit the intended offence, he could be charged with the substantive sexual offence in addition to this offence.

Clause 67: Trespass with intent to commit a sexual offence

54.     Clause 67 makes it an offence for A intentionally to enter a structure, part of a structure or land with the intent of committing a "relevant sexual offence" (defined at subsection (2) of clause 66) where he so enters as a trespasser, either knowing, or being reckless as to whether, he is trespassing. A person "enters as a trespasser" if he enters without the owner or occupier's consent. This offence is intended to capture, for example, the situation where a person (A) enters a building owned by B, or goes into B's garden or garage without B's consent, intending to commit a sexual offence against the occupier. The offence applies regardless of whether or not the substantive sexual offence is committed. A must have the intent to commit a relevant sexual offence at the time he enters the structure, part of structure or land that he enters as a trespasser. For example A may enter B's property on B's invitation, but B may make it clear that A is not to go into a particular part of that property. A will commit the offence if he has the intent to commit a relevant sexual offence when he enters the prohibited part of the property - he need not have had that intent when he first entered the property on B's invitation. The intent is likely to be inferred from what the defendant says or does to the victim or intended victim (if there is one) or from items in possession of the defendant at the time he commits the trespass (for example, condoms, pornographic images, rope etc.).

Clause 68: Sex with an adult relative: penetration

Clause 69: Sex with an adult relative: consenting to penetration

55.     Clause 68 makes it an offence for a person (A) aged 16 or over intentionally to penetrate sexually a close relative (B) who is aged 18 or over. Clause 69 makes it an offence for a person (A) aged 16 or over to consent to being penetrated sexually by a close relative (B) aged 18 or over. For the offence to be committed the penetration must be "sexual", as defined at Clause 80. This requirement ensures that penetration for some other purpose, for example where one sibling helps another to insert a pessary for medical reasons, is not caught by this offence. Subsection (4) defines "relative" for the purposes of this offence. Adoptive relatives are excluded from this offence. Paragraph 30 of Schedule 4 makes a consequential amendment to the Adoption and Children Act 2002, to the effect that the provision in the 2002 Act that makes an adoptive child a child of the adoptive parents, does not apply in relation to these offences. Therefore, for example, it will not be an offence under these clauses for an adoptive brother and sister aged over 18 to have sexual intercourse. Subsection (3) provides that A does not commit an offence if he can prove on the balance of probabilities that he did not know that B is a relative, unless the prosecution can prove that A's belief was unreasonable.

Clause 70: Exposure

56.     Clause 70 makes it an offence for a person intentionally to expose his genitals where he either knows or intends that someone will see them and he knows or intends or is reckless as to whether a person who sees them will be caused alarm or distress. If he is in a dwelling however, subject to one caveat, he must either know or intend a person who sees his genitals to be caused alarm or distress (recklessness is not enough). The caveat is that where A knows or intends that a child under 16 will see his genitals, the offence may also be committed where A is reckless as to whether the child will be caused alarm or distress (in line with the position where the exposure takes place outside of a dwelling.) So where for example A is inside his house and has only adult guests, if he walks around in front of them naked, he will only commit the offence where he knows or intends to alarm those guests. Where the guests are children under 16 and A foresees a risk of alarming or distressing them by his nudity but unreasonably takes that risk, he will commit an offence. It is not necessary for A's genitals to have been seen by anyone or for anyone to have been alarmed or distressed. For example, if a person exposes his genitals to some passers-by, he may (depending on his state of mind) commit the offence regardless of whether they actually see his genitals or whether they have been alarmed or distressed by seeing them.

Clause 71: Voyeurism

57.     Clause 71 makes it an offence for a person (A) to observe for his sexual gratification another person (B) committing a 'private act' (defined in subsection (2)) where A knows that B does not consent to being so observed. The offence is also committed if A, for his sexual gratification, looks at a still or moving image (for example a photograph or images from a webcam) of B engaged in a private act, where he knows that B does not consent to the image being so looked at. Where the image is a recorded one (that is the act being looked at is not live), A must also know that B did not consent to the act being recorded in order that it could later be shown for the sexual gratification of relevant others. The effect of this is that where the image is a recorded one and B did not consent to it being so recorded at the time but later does give his consent for A to look at it for A's sexual gratification, A will commit no offence. Subsection (2) defines private act. The act must take place in a 'structure'. This term is further explained at subsection (3) and can include for example buildings, portable lavatories and caravans. It must however be reasonable in the circumstances to expect the structure to provide privacy. So although a shop would constitute a structure, unless the act took place behind some kind of screen, there would be no reasonable expectation of privacy. The kind of acts the offence could cover include a landlord secretly observing his tenants bathing or using the toilet in their bathrooms or having sexual intercourse or masturbating in their bedrooms, or a person looking through a peephole at people dressed only in their underwear in the changing room of a clothes shop or a tented cubicle at a market stall. Subsection (4) specifies that it is also an offence for A to instal or operate equipment or construct or adapt a structure with the intention of enabling himself or another to commit an offence under subsection (1). It would, therefore, be an offence for A to instal a peephole, camera or two way mirror in B's bathroom in order to look for his own sexual gratification at B engaged in a private act where he knows B does not consent to being so looked at. It would also be an offence for A to film B undressing in a swimming pool changing room intending that someone else (C) should look at the film for their own sexual gratification, where C knows that B does not give the relevant consents. This offence is not designed to apply to journalists where they are pursuing legitimate journalistic activity as in these circumstances the observing or taking of images will not be done for sexual gratification.

Clause 72: Intercourse with an animal

58.     Clause 72 makes it an offence for a man intentionally to penetrate the vagina or anus of a living animal with his penis where he knows or is reckless as to whether that is what he is penetrating. The reference to vagina or anus in this context is further explained at subsection (8) of clause 81. Subsection (2) makes it an offence for a person to intentionally cause or allow her vagina or his or her anus to be penetrated by the penis of a living animal where he or she knows or is reckless as to whether that is what is doing the penetrating. This offence is related solely to penile penetration in relation to animals and does not replace existing legislation covering cruelty to animals.

Clause 73: Sexual penetration of a corpse

59.     Clause 73 makes it an offence for a person (A) to intentionally penetrate any part of the body of a dead person (B) with his penis, any other body part (for example his finger), or other object, where that penetration is sexual. The offence is committed when A knows or is reckless as to whether he is penetrating any part of a dead body. This is intended to cover when A knows he is penetrating a dead body, for example in a mortuary, or where A is reckless as to whether B is alive or dead (that is, A is aware of a risk that B is dead and unreasonably takes that risk). It will not cover situations where A penetrates B fully believing B to be alive, but in fact B is dead, or where B unexpectedly dies during intercourse. The penetration must be sexual. A definition of sexual is given in Clause 80. This is to exclude legitimate penetration of corpses, for example that which occurs during an autopsy.

Clause 74: Sexual activity in public

60.     Subsection (1) of clause 74 makes it an offence for a person (A) intentionally to engage in specified sexual activities in a public place (defined at subsection (4)) where he knows that, or is reckless as to whether any part of him, or of another participant in the sexual activity, will be seen by a third party (C). The offence is not committed if A knows or is reckless as to whether he will be seen by someone who he reasonably believes will be willing to observe him engaging in the sexual activity, for example where it is part of a performance in a known sex club. The offence under subsection (2) is designed to cover cases where A engages in the sexual activity in a place which may not itself be a public place, but where activity in that place can be seen from a public place. An example would be a private garden which can be seen from the street. This offence is not committed where the act takes place inside a dwelling. So for example where A has sex in his bedroom, leaving his curtains open so he knows there is a risk he will be seen from the house opposite, he does not commit an offence under this subsection. Subsection (3) defines the specified sexual acts relevant to the offence. The term "sexual" is defined at clause 80. This term is used in this clause in order to exclude, for example, emergency medical procedures that involve penetration of the anus or touching a baby's genitalia as part of the process of changing its nappy. In relation to subsection 3(c) and (d) the reference to "other than through..clothes" is to exclude from the offence cases where A might scratch himself through his clothes or A's knee might touch another person's crotch while they are simply embracing fully clothed.

Clause 75: Offences outside the United Kingdom

61.     Subsection (1) of clause 75 makes it an offence in England, Wales and Northern Ireland for a British citizen or UK resident (subject to subsection (2)) to commit a sexual offence overseas against a child under 16. The date referred to in subsection (2) is the commencement date of Part 2 of the Sex Offenders Act 1997, which this clause re-enacts. The act done must amount to a sexual offence listed in Schedule 1 and must also amount to an offence in the country where it was committed. The exact description of the offence does not need to be the same in both countries. For example, the provisions would apply to someone who raped a child in another country regardless of how that offence was described under the law in that country. Subsection (4) provides that the defendant can require the prosecution to prove that an overseas offence is equivalent to one in Schedule 1.

Clause 76: Offences against children under 13

62.     The effect of this clause is that a person may not be convicted of certain offences in Part 1 of the Bill where the victim is under the age of 13. So, for example, since this clause applies to the offence of sexual activity with a child (clause 9), a person may not be convicted of that offence where the victim is under the age of 13. This is because the person should instead be convicted of rape of a child under 13 (clause 2), assault of a child under 13 by penetration (clause 4) or sexual assault of a child under 13 (clause 6).

Clause 77: "Consent"

     63.     Clause 77 defines "consent" for the purposes of this Part. The clause refers to a person's capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder or learning disability. This definition is relevant to many clauses in Part 1 including, for example, the offence of rape (clause 1) and the second offence of sex with an adult relative (clause 69).

Clause 78: Presumptions about the absence of consent

     64.     This clause applies to the offences of rape (clause 1), assault by penetration (clause 3), sexual assault (clause 5) and causing a person to engage in sexual activity without consent (clause 7). The clause provides for two sets of presumptions in relation to lack of consent and lack of belief in consent. The first set of presumptions may be rebutted by the defendant. The second set of presumptions may not be rebutted and are conclusive. The rebuttable presumptions arise in the circumstances described in subsection (3). The difference between paragraphs (a) and (b) of subsection (3) is that paragraph (a) covers violence and threats of violence used against the complainant whereas paragraph (b) covers violence and threats of violence used against a person other than the complainant. The violence or threat must occur either at the time of the relevant act or immediately before it. The effect of subsection (4) is that where, for example, the relevant act for which the person is being prosecuted is penetration, but the penetration is the culmination of a series of sexual activities, then if the violence or threat occurred immediately before the first sexual activity (as opposed to the penetration), the presumptions still arise. Where the prosecution proves that the defendant did a relevant act (as defined in clause 79), that the circumstances described in subsection (3) existed and that the defendant knew that those circumstances existed, two presumptions arise. The first presumption is that the complainant is taken not to have consented to the relevant act. To rebut this, sufficient evidence must be adduced to raise an issue as to whether the complainant consented. Evidence resulting from cross-examination of the complainant is not acceptable for these purposes (subsection (2)), however, unless it amounts to an admission that the complainant consented. Thus, in order to rebut the presumption, the defendant would normally have to adduce positive evidence of his own. This might be evidence that he gives in the witness box; it might be evidence that a friend gives on his behalf, for example, a friend who was in the next door room at the time and heard what was going on. The second presumption is that the defendant is taken not to have believed that the complainant consented. To rebut this, the defendant must prove on the balance of probabilities that he did believe that the complainant consented. There are two types of conclusive presumptions. The first type are covered in subsections (5) and (6). Where the prosecution prove that the defendant did the relevant act, that the complainant did not consent and that the only evidence of an alleged lack of belief in consent on the part of the defendant was something which is said or done by a third party, he is conclusively to be presumed to have acted unreasonably as set out in subsection (6). This might arise where a defendant claims to have believed the complainant was consenting, despite her protests, because he had been told by another person that she would protest and that would mean that she was enjoying herself. Where this is the only evidence of the defendant's belief in consent (and evidence that she did protest does not count for these purposes as additional evidence (subsection (5)(b)(ii)), the defendant will be presumed to have acted unreasonably and will be convicted (assuming the prosecution have proved that the relevant act took place and the complainant did not consent). The second type of conclusive presumptions arise in the circumstances described in subsection (8). Paragraph (a) covers the situation where, for example, the defendant intentionally tells the complainant that digital penetration of her vagina is necessary for medical reasons when in fact it is for his sexual gratification. Paragraph (b) covers the situation where, for example, the defendant impersonates the complainant's partner and thereby causes the complainant to consent to the relevant act. Where the prosecution prove that the defendant did the relevant act and that any of the circumstances described in subsection (8) existed, it is conclusively presumed that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act. The defendant will therefore be convicted.

Clause 80: "Sexual"

65.     Clause 80 defines "sexual" for the purposes of this Part. This definition is relevant to many of the offences under this Part. For example, clause 3(1)(b) refers to penetration which is sexual and clause 9(1)(b) refers to touching which is sexual. Paragraph (a) requires the reasonable person to look at the nature of the activity in question. If, from looking at the nature of the activity, it would not occur to the reasonable person that it would be sexual, it does not meet the test, even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes do not fall within the definition of sexual activity. The nature of some activities is such that they are obviously sexual, such as sexual intercourse, and they would meet the test. Other activities may or may not be sexual depending on the circumstances and the intentions of the people carrying them out, for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason. These activities would meet the test in paragraph (a) since the reasonable person need only think that the activities may be sexual; he does not need to come to any conclusion about the matter. Activities which meet the test in paragraph (a) must then be considered under paragraph (b). In order to assess whether the activity is sexual, the reasonable person must look at any or all of the following factors: the nature of the activity; the circumstances in which the activity is carried out; and the purpose of any of the participants. Where the activity is, for example, oral sex, it seems likely that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (if it is in a doctor's surgery, it is probably not sexual) and the purpose of any of the participants (if the doctor's purpose is medical, the activity will not be sexual; if the doctor's purpose is sexual, it will be sexual).

Clause 81: Part 1: general interpretation

     66.     Clause 81 gives a series of definitions relevant to offences in this Part. Subsection (2) is needed so that where, for example, a person consents at the time of entry to penetration, but then withdraws his consent and the penetration continues, the person penetrating is guilty of rape or assault by penetration. Subsection (5) defines photograph and pseudo-photograph by reference to section 7 of the Protection of Children Act 1978. The effect of this, for example, is that a photograph includes a film and video recording and a pseudo-photograph includes an image made by computer graphics.

Part 2: Notification and Orders

Clause 82: Persons becoming subject to notification requirements

67.     Clauses 82 to 94 re-enact with amendments, Part I of the Sex Offenders Act 1997 (the 1997 Act), which established the obligation on sex offenders to notify their details with the police. This process is commonly known as "registration". Clause 82 sets out the persons who are required to comply with the notification requirements. Such a person is referred to as a "relevant offender" (subsection (2)). Subsection (1)(a) provides that notification requirements apply to a person who is convicted of an offence specified in Schedule 2, which are exclusively sexual offences. The offences in Schedule 2 relating to England and Wales, Scotland, Northern Ireland and Service Law respectively, include all the offences that were listed in the corresponding section of Schedule 1 of the 1997 Act. In relation to England and Wales, Schedule 2 also includes various offences under Part 1 of this Bill. A number of the offences in schedule 2 are subject to age and sentence thresholds beneath which the offence will not trigger the notification requirements. In relation to clause 82 (and Part 2 generally) a "conviction" includes a conditional discharge: clause 120 provides that in relation to an order for a conditional discharge, the legislation that deems a conviction with an absolute or conditional discharge not to be a conviction, does not apply in relation to this Part of the Bill. A conviction also includes a finding by a court martial (clause 119). The term "convicted" as it applies to mentally disordered offenders is explained at clause 121(1) and (2). The reference at subsection (1)(c) is further explained at clause 121(3). Subsection (1)(d) refers to a person who is cautioned for a relevant offence. Clause 119 provides that the term 'caution' includes a reprimand or warning given under section 65 of the Crime and Disorder Act 1998 (the 1998 Act), which are given to young offenders.

Clause 83: Persons formerly subject to Part 1 of the Sex Offenders Act 1997

68.     Clause 83 provides that, on commencement of this Part of the Bill, offenders previously subject to the notification requirements of the 1997 Act by virtue of a conviction, relevant finding or caution for an offence listed in Schedule 2 of the Bill, will be subject to the notification requirements of this Part. Subsections (3) to (6) replicate the partially retrospective provisions of the 1997 Act, so that, save in specified circumstances, convictions, findings and cautions that pre-date 1 September 1997 (the date of commencement of the 1997 Act) will not trigger the notification requirements. Subsections (7) and (8) relates to persons who immediately before commencement of this Part were subject to a sex offender order or an interim sex offender order in England, Wales or Northern Ireland, or a restraining order in England and Wales. These orders all impose the notification requirements under the 1997 Act. Such persons will, from commencement, become subject to the notification requirements of this Part of the Bill.

 
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Prepared: 29 January 2003