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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    14

 

     (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 29, 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 he was aged 18 or over at the

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

10

term 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;

15

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

5 years.

 29    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

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           (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).

     (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,

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           (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

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

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

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

           (b)           A and B are cousins,

           (c)                         one of them is or has been the other’s stepbrother or stepsister, or

           (d)           the parent or present or former foster 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—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    15

 

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

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;

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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;

           (e)           “stepbrother” and “stepsister” include the child of a parent’s partner.

 30    Sections 27 and 28: marriage exception

10

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

27 or 28 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.

15

 31    Sections 27 and 28: sexual relationships which pre-date family relationships

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

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

           (a)           the relation of A to B is not within subsection (2) of section 29,

           (b)           it would not be within that subsection if section 67 of the Adoption and

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Children Act 2002 (c. 38) did not apply, and

           (c)           immediately before the relation of A to B first became such as to fall

within section 29, a sexual relationship existed between A and B.

     (2)    Subsection (1) does not apply if at the time referred to in subsection (1)(c)

sexual intercourse between A and B would have been unlawful.

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     (3)    In proceedings for an offence under section 27 or 28 it is for the defendant to

prove the matters mentioned in subsection (1)(a) to (c).

Offences against persons with a mental disorder or learning disability

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

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

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           (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,

and

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

35

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 the touching

(whether because he lacks sufficient understanding of the nature or

40

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

or

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    16

 

           (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

indictment—

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

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

5

     (4)    This subsection applies if the touching involved—

           (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

10

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

 33    Causing or inciting 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 or incites another person (B) to engage in an

15

activity,

           (b)           the activity is sexual,

           (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

20

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

activity caused or incited (whether because he lacks sufficient

25

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

indictment—

30

           (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 or incited involved—

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

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

35

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

or learning disability

40

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

           (a)           he intentionally engages in an activity,

           (b)           the activity is sexual,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    17

 

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

and

5

           (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.

     (2)    B is unable to refuse if—

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

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(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.

     (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.

15

 35    Causing a person with a mental disorder or learning disability 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

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

an activity,

           (b)           the activity is sexual,

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

and

25

           (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 watching or looking

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(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.

     (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.

35

Inducements etc. to persons with mental disorder or learning disability

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

a mental disorder or learning disability

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

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

40

person,

           (b)           the touching is sexual,

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

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

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    18

 

           (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, on conviction on

indictment—

5

           (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—

           (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.

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

sexual activity by inducement, threat or deception

15

     (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

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

           (b)           the activity is sexual,

20

           (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.

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

indictment—

25

           (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 or agreed to involved—

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

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

30

           (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.

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

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

35

     (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

40

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

that agreement,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    19

 

           (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—

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

5

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.

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

sexual act by inducement, threat or deception

10

     (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

an activity,

15

           (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,

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

20

           (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

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

25

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

10 years.

Care workers for persons with mental disorder or learning disability

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

disability

30

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

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

           (b)           the touching 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 44.

35

     (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

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

disorder or learning disability.

40

     (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,

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

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    20

 

           (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.

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

5

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

10 years.

10

 41    Care workers: causing or inciting sexual activity

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

           (a)           he intentionally causes or incites another person (B) to engage in an

activity,

           (b)           the activity is sexual,

15

           (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 44.

     (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

20

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 or incited

involved—

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

25

           (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

30

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;

35

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

10 years.

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

disorder or learning disability

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

40

           (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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Revised 11 June 2003