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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    18

 

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

and

           (e)           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.

5

     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to being present

(whether because he lacks sufficient understanding of the nature of the

activity, or for any other reason), or

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

10

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

indictment, to imprisonment for a term not exceeding 10 years.

 36    Causing a person with a mental disorder or learning disability to watch a

sexual act

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

15

           (a)           for the purpose of obtaining sexual gratification, he intentionally causes

another person (B) to watch a third person engaging in an activity, or to

look at a photograph or pseudo-photograph of any person engaging 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

           (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.

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     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to watching or looking

(whether because he lacks sufficient understanding of the nature of the

activity, or for any other reason), or

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

30

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

indictment, to imprisonment for a term not exceeding 10 years.

Inducements etc. to persons with mental disorder or learning disability

 37    Inducement, threat or deception to procure sexual activity with a person with

a mental disorder or learning disability

35

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

           (a)           with the agreement of another person (B) he intentionally touches that

person,

           (b)           the touching is sexual,

           (c)           A obtains B’s agreement by means of an inducement offered or given,

40

a threat made or a deception practised by A for that purpose,

           (d)           B has a mental disorder or learning disability, and

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

disorder or learning disability.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    19

 

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

indictment—

           (a)           where subsection (3) applies, to imprisonment for life;

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

     (3)    This subsection applies if the touching involved—

5

           (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.

10

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

sexual activity by inducement, threat or deception

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

           (a)           by means of an inducement offered or given, a threat made or a

deception practised by him for this purpose, he intentionally causes a

15

person (B) to engage in an activity,

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

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

disorder or learning disability.

20

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

indictment—

           (a)           where subsection (3) applies, to imprisonment for life;

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

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

25

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

           (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.

30

 39    Causing a person with a mental disorder or learning disability to agree to

engage in sexual activity by inducement, threat or deception

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

           (a)           by means of an inducement offered or given, a threat made or a

deception practised by him for this purpose, he intentionally causes a

35

person (B) to agree to engage in an activity,

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

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

disorder or learning disability.

40

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

indictment, to imprisonment for life.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    20

 

 40    Engaging in sexual activity in the presence, procured by inducement, threat or

deception, of a person with a mental disorder or learning disability

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

           (a)           he intentionally engages in an activity,

           (b)           the activity is sexual,

5

           (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,

           (d)           B agrees to be present because of an inducement offered or given, a

threat made or a deception practised by A for the purpose of obtaining

10

that agreement,

           (e)           B has a mental disorder or learning disability, and

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

disorder or learning disability.

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

15

           (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

10 years.

 41    Causing a person with a mental disorder or learning disability to watch a

20

sexual act by inducement, threat or deception

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

           (a)           for the purpose of obtaining sexual gratification, he intentionally causes

another person (B) to watch a third person engaging in an activity, or to

look at a photograph or pseudo-photograph of any person engaging in

25

an activity,

           (b)           the activity is sexual,

           (c)           B agrees to watch or look because of an inducement offered or given, a

threat made or a deception practised by A for the purpose of obtaining

that agreement,

30

           (d)           B has a mental disorder or learning disability, and

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

disorder or learning disability.

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

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

35

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

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

10 years.

Care workers for persons with mental disorder or learning disability

 42    Care workers: sexual activity with a person with a mental disorder or learning

40

disability

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

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

           (b)           the touching is sexual,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    21

 

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 47.

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

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

5

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)           A person guilty of an offence under this section, if the touching involved—

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

else,

10

           (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,

            is liable, on conviction on indictment, to imprisonment for a term not

exceeding 14 years.

15

     (4)    Unless subsection (3) 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;

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

20

10 years.

 43    Care workers: causing 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,

25

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 47.

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

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

30

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)           A person guilty of an offence under this section, if the activity caused

involved—

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

35

           (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,

            is liable, on conviction on indictment, to imprisonment for a term not

40

exceeding 14 years.

     (4)    Unless subsection (3) 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;

45

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    22

 

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

10 years.

 44    Care workers: inciting sexual activity

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

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

5

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 47.

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

that he did not know that the other person had a mental disorder or learning

10

disability, he is not guilty of the offence unless it is proved that he could

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)    A person guilty of an offence under this section, if the activity incited

involved—

15

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

           (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,

20

            is liable, on conviction on indictment, to imprisonment for a term not

exceeding 14 years.

     (4)    Unless subsection (3) applies, a person guilty of an offence under this section

is liable—

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

25

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

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

10 years.

 45    Care workers: sexual activity in the presence of a person with a mental

disorder or learning disability

30

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

           (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

35

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

           (d)           B has a mental disorder or learning disability, and

           (e)           A is involved in B’s care in a way that falls within section 47.

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

that he did not know that the other person had a mental disorder or learning

40

disability, he is not guilty of the offence unless it is proved that he could

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

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

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    23

 

           (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

7 years.

 46    Care workers: causing a person with a mental disorder or learning disability

5

to watch a sexual act

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

           (a)           for the purpose of obtaining sexual gratification, he intentionally causes

another person (B) to watch a third person engaging in an activity, or to

look at a photograph or pseudo-photograph of any person engaging in

10

an activity,

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 47.

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

15

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

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

20

           (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

7 years.

 47    Care workers: interpretation

25

     (1)    For the purposes of sections 42 to 46, a person (A) is involved in the care of

another person (B) in a way that falls within this section if any of subsections

(2) to (4) applies.

     (2)    This subsection applies if—

           (a)           B is accommodated and cared for in a care home, community home,

30

voluntary home or children’s home, and

           (b)           A has functions to perform in the home in the course of employment

which have brought him or are likely to bring him into regular face to

face contact with B.

     (3)    This subsection applies if B is a patient for whom services are provided—

35

           (a)           by a National Health Service body or an independent medical agency,

or

           (b)           in an independent clinic or an independent hospital,

            and A has functions to perform for the body or agency or in the clinic or

hospital in the course of employment which have brought him or are likely to

40

bring him into regular face to face contact with B.

     (4)    This subsection applies if A—

           (a)                         is, whether or not in the course of employment, a provider of care,

assistance or services to B in connection with B’s mental disorder or

learning disability, and

45

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    24

 

           (b)           as such, has had or is likely to have regular face to face contact with B.

     (5)    In this section—

                    “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 the meaning given by section 1 of that Act;

5

                    “community home” has the meaning given by section 53(1) of the

Children Act 1989 (c. 41);

                    “employment” means any employment, whether paid or unpaid and

whether under a contract of service or apprenticeship, under a contract

for services, or otherwise than under a contract;

10

                    “independent clinic”, “independent hospital” and “independent medical

agency” have the meaning given by section 2 of the Care Standards Act

2000;

                    “National Health Service body” means—

                  (a)                 a Health Authority,

15

                  (b)                 a National Health Service trust,

                  (c)                 a Primary Care Trust, or

                  (d)                 a Special Health Authority;

                    “voluntary home” has the meaning given by section 60(3) of the Children

Act 1989.

20

 48    Sections 42 to 46: marriage exception

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

sections 42 to 46 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

25

lawfully married at the time.

 49    Sections 42 to 46: sexual relationships which pre-date care relationships

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

sections 42 to 46 against another person (B) is not an offence under that section

if, immediately before A became involved in B’s care in a way that falls within

30

section 47, a sexual relationship existed between A and B.

     (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 42 to 46 it is for the

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

35

Indecent photographs of children

 50    Indecent photographs of persons aged 16 or 17

     (1)    The Protection of Children Act 1978 (c. 37) (which makes provision about

indecent photographs of persons under 16) is amended as follows.

     (2)    In section 2(3) (evidence) and section 7(6) (meaning of “child”), for “16”

40

substitute “18”.

 

 

 
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