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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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 23    Abuse of position of trust: acts done in Scotland

Anything which, if done in England and Wales or Northern Ireland, would

constitute an offence under any of sections 18 to 22 also constitutes that offence

if done in Scotland.

 24    Positions of trust

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     (1)    For the purposes of sections 18 to 22, a person (A) is in a position of trust in

relation to another person (B) if—

           (a)           any of subsections (2) to (8) applies, or

           (b)           any condition specified in an order made by the Secretary of State is

met.

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     (2)    This subsection applies if A looks after persons under 18 who are detained in

an institution by virtue of a court order or under an enactment, and B is so

detained in that institution.

     (3)    This subsection applies if A looks after persons under 18 who are resident in a

home or other place in which—

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           (a)           accommodation and maintenance are provided by an authority under

section 23(2) of the Children Act 1989 (c. 41) or Article 27(2) of the

Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), or

           (b)           accommodation is provided by a voluntary organisation under section

59(1) of that Act or Article 75(1) of that Order,

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                   and B is resident, and is so provided with accommodation and maintenance or

accommodation, in that place.

     (4)    This subsection applies if A looks after persons under 18 who are

accommodated and cared for in one of the following institutions—

           (a)           a hospital,

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           (b)           an independent clinic,

           (c)           a care home, residential care home or private hospital,

           (d)           a community home, voluntary home or children’s home,

           (e)           a home provided under section 82(5) of the Children Act 1989, or

           (f)           a residential family centre,

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            and B is accommodated and cared for in that institution.

     (5)    This subsection applies if A looks after persons under 18 who are receiving full-

time education at an educational institution and B is receiving, and A is not

receiving, full-time education at that institution.

     (6)    This subsection applies if A is engaged in the provision of services under, or

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pursuant to anything done under, section 114 of the Learning and Skills Act

2000 (c. 21) and, in that capacity, looks after B on an individual basis.

     (7)    This subsection applies if A is a personal adviser appointed for B under—

           (a)           section 23B(2) of, or paragraph 19C of Schedule 2 to, the Children Act

1989, or

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           (b)           Article 34A(10) or 34C(2) of the Children (Northern Ireland) Order

1995,

            and, in that capacity, looks after B on an individual basis.

     (8)    This subsection applies if—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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           (a)           B is subject to requirements imposed by or under an enactment on his

release from detention for a criminal offence, or is subject to

requirements imposed by a court order made in criminal proceedings,

and

           (b)           A looks after B on an individual basis in pursuance of the requirements.

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 25    Positions of trust: interpretation

     (1)    The following provisions apply for the purposes of section 24.

     (2)    Subject to subsection (3), a person looks after persons under 18 if he is regularly

involved in caring for, training, supervising or being in sole charge of such

persons.

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     (3)    A person (A) looks after another person (B) on an individual basis if—

           (a)           A is regularly involved in caring for, training or supervising B, and

           (b)           in the course of his involvement, A regularly has unsupervised contact

with B alone (whether face to face or by any other means).

     (4)    A person receives full-time education at an educational institution if—

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           (a)           he is registered or otherwise enrolled as a full-time pupil or student at

the institution, or

           (b)           he receives education at the institution under arrangements with

another educational institution at which he is so registered or otherwise

enrolled.

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     (5)    In section 24

                    “authority”—

                  (a)                 in relation to England and Wales, means a local authority;

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

Article 2(2) of the Children (Northern Ireland) Order 1995 (S.I.

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1995/755 (N.I. 2));

                    “care home” means an establishment which is a care home for the

purposes of the Care Standards Act 2000 (c. 14);

                    “children’s home” has—

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

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1 of the Care Standards Act 2000, and

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

given by Article 9 of the Health and Personal Social Services

(Quality, Improvement and Regulation) (Northern Ireland)

Order 2003 (S.I. 2003/431 (N.I. 9)) (“the 2003 Order”) if in

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paragraph (4) of that Article sub-paragraphs (d), (f) and (g)

were omitted;

                    “community home” has the meaning given by section 53 of the Children

Act 1989 (c. 41);

                    “hospital”—

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

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

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

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

Act 2000;

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                  (b)                 in relation to Northern Ireland, means a hospital within the

meaning given by Article 2(2) of the Health and Personal Social

Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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14)), or any other establishment which is a hospital within the

meaning given by Article 2(2) of the 2003 Order;

                    “           independent clinic” has—

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

2 of the Care Standards Act 2000 (c. 14);

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

2(2) of the 2003 Order;

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

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

                    “residential care home” means an establishment which is a residential

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care home for the purposes of the 2003 Order;

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

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

                    “voluntary home” has—

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

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60(3) of the Children Act 1989 (c. 41), and

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

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

755 (N.I. 2)).

 26    Sections 18 to 22: marriage exception

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

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

if they are lawfully married at the time.

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

lawfully married at the time.

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

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

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

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

between A and B.

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

B would have been unlawful.

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

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

Familial child sex offences

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 28    Sexual activity with a child family member

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

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

           (b)           the touching is sexual,

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

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           (d)           B is under 18.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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

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

offence unless it is proved—

           (a)           that his belief was unreasonable, or

           (b)           that the other person was under 13.

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

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

a description falling within section 30, and

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

person was of that description,

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

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

description.

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

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

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not exceeding 14 years.

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

is liable—

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

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

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

5 years.

 29    Inciting a child family member to engage in sexual activity

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

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

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be touched by, A,

           (b)           the touching is sexual,

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

           (d)           B is under 18.

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

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

offence unless it is proved—

           (a)           that his belief was unreasonable, or

           (b)           that the other person was under 13.

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

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

a description falling within section 30, and

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

person was of that description,

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

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

description.

     (4)           A person guilty of an offence under this section, if he was aged 18 or over and

the other person was under 13 at the time of the offence, and the activity incited

involved—

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Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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

else,

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

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

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

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            is liable, on conviction on indictment, to imprisonment for life.

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

if he was aged 18 or over at the time of the offence, is liable on conviction on

indictment to imprisonment for a term not exceeding 14 years.

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

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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

5 years.

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 30    Family relationships

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

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

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

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

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

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

brother, half-sister, aunt or uncle,

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

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

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

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

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

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

           (b)           A and B are cousins, or

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

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

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

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

sole charge of B.

     (5)    For the purposes of this section—

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

has a corresponding meaning;

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

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

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

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

(fostering for local authority or voluntary organisation), or

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

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

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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

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

relationship.

 31    Sections 28 and 29: marriage exception

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

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

are lawfully married at the time.

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

lawfully married at the time.

Offences against persons with a mental disorder or learning disability

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

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

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

           (b)           the touching is sexual,

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

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and

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

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

unable to refuse.

     (2)    B is unable to refuse if—

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

(whether because he lacks sufficient understanding of the nature or

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

or

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

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

indictment—

           (a)           where subsection (4) applies, to imprisonment for life;

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

     (4)    This subsection applies if the touching involved—

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

else,

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

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

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

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

sexual activity

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

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

           (b)           the activity is sexual,

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

and

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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

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

unable to refuse.

     (2)    B is unable to refuse if—

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

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activity caused (whether because he lacks sufficient understanding of

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

reason), or

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

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

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indictment—

           (a)           where subsection (4) applies, to imprisonment for life;

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

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

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

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

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

B with anything else, or

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

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

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sexual activity

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

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

           (b)           the activity is sexual,

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

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and

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

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

unable to refuse.

     (2)    B is unable to refuse if—

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

activity incited (whether because he lacks sufficient understanding of

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

reason), or

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

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

indictment, to imprisonment for life.

 35    Engaging in sexual activity in the presence of a person with a mental disorder

or learning disability

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

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           (a)           he intentionally engages in an activity,

           (b)           the activity is sexual,

           (c)           for the purpose of obtaining sexual gratification, he engages in it in the

presence of another person (B), knowing or believing that B is aware, or

intending that B should be aware, that he is engaging in it,

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