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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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 16    Sections 10 to 15: marriage exception

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

sections 10 to 14 against another person (B) is not an offence under that section

if—

           (a)           at the time, A and B are lawfully married,

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           (b)           no other person is taking part or otherwise involved, and

           (c)           the conduct does not involve a photograph or pseudo-photograph of

any other person engaging in a sexual activity.

     (2)    In proceedings for an offence under any of sections 10 to 15 it is for the

defendant to prove that subsection (1) applied.

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 17    Meeting a child following sexual grooming etc.

     (1)    A person aged 18 or over (A) commits an offence if—

           (a)           having met or communicated with another person (B) on at least two

earlier occasions, he—

                  (i)                 intentionally meets B, or

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                  (ii)                travels with the intention of meeting B in any part of the world,

           (b)           at the time, he intends to do anything to or in respect of B, during or

after the meeting and in any part of the world, which if done will

involve the commission by A of a relevant offence,

           (c)           B is under 16, and

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           (d)           A does not reasonably believe that B is 16 or over.

     (2)    In subsection (1)—

           (a)           the reference to A having met or communicated with B is a reference to

A having met B in any part of the world or having communicated with

B by any means from, to or in any part of the world;

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           (b)           “relevant offence” means—

                  (i)                 an offence under this Part,

                  (ii)                                    an offence within any of paragraphs 53 to 90 of Schedule 3, or

                  (iii)               anything done outside England and Wales and Northern

Ireland which is not an offence within sub-paragraph (i) or (ii)

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but would be an offence within sub-paragraph (i) if done in

England and Wales.

     (3)    In this section as it applies to Northern Ireland—

           (a)           subsection (1) has effect with the substitution of “17” for “16” in both

places;

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           (b)                         subsection (2)(b)(iii) has effect with the substitution of “sub-paragraph

(ii) if done in Northern Ireland” for “sub-paragraph (i) if done in

England and Wales”.

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

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

40

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.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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Abuse of a position of trust

 18    Abuse of position of trust: sexual activity with a child

     (1)    A person aged 18 or over (A) commits an offence if—

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

           (b)           the touching is sexual,

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           (c)           A is in a position of trust in relation to B, and

           (d)           B is under 18.

     (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—

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           (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 it is proved that a

position of trust existed because of circumstances within section 23(2), (3), (4)

or (5) and the defendant proves that he did not know of those circumstances,

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he is not guilty of the offence unless it is proved—

           (a)           that he could reasonably have been expected to know of those

circumstances, or

           (b)           that a position of trust existed because of other circumstances.

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

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           (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.

 19    Abuse of position of trust: causing or inciting a child to engage in sexual

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activity

     (1)    A person aged 18 or over (A) commits an offence if—

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

activity,

           (b)           the activity is sexual,

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           (c)           A is in a position of trust in relation to B, and

           (d)           B is under 18.

     (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—

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           (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 it is proved that a

position of trust existed because of circumstances within section 23(2), (3), (4)

or (5) and the defendant proves that he did not know of those circumstances,

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he is not guilty of the offence unless it is proved—

           (a)           that he could reasonably have been expected to know of those

circumstances, or

           (b)           that a position of trust existed because of other circumstances.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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     (4)    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

5 years.

5

 20    Abuse of position of trust: sexual activity in the presence of a child

     (1)    A person aged 18 or over (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

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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)           A is in a position of trust in relation to B, and

           (e)           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 it is proved that a

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position of trust existed because of circumstances within section 23(2), (3), (4)

or (5) and the defendant proves that he did not know of those circumstances,

he is not guilty of the offence unless it is proved—

           (a)           that he could reasonably have been expected to know of those

circumstances, or

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           (b)           that a position of trust existed because of other circumstances.

     (4)    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

30

5 years.

 21    Abuse of position of trust: causing a child to watch a sexual act

     (1)    A person aged 18 or over (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)           A is in a position of trust in relation to B, and

           (d)           B is under 18.

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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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Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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     (3)    Where in proceedings for an offence under this section it is proved that a

position of trust existed because of circumstances within section 23(2), (3), (4)

or (5) and the defendant proves that he did not know of those circumstances,

he is not guilty of the offence unless it is proved—

           (a)           that he could reasonably have been expected to know of those

5

circumstances, or

           (b)           that a position of trust existed because of other circumstances.

     (4)    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.

 22    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

15

if done in Scotland.

 23    Positions of trust

     (1)    For the purposes of sections 18 to 21, 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

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

met.

     (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.

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

home or other place in which—

           (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

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

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

                   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

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accommodated and cared for in one of the following institutions—

           (a)           a hospital,

           (b)           an independent clinic,

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

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

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

           (f)           a residential family centre,

            and B is accommodated and cared for in that institution.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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

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

receiving, education at that institution.

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

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

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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 (c. 41), or

           (b)           Article 34A(10) or 34C(2) of the Children (Northern Ireland) Order 1995

10

(S.I. 1995/755 (N.I. 2)),

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

     (8)    This subsection applies if—

           (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

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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.

 24    Positions of trust: interpretation

     (1)    The following provisions apply for the purposes of section 23.

20

     (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.

     (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

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           (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 education at an educational institution if—

           (a)           he is registered or otherwise enrolled as a pupil or student at the

institution, or

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

another educational institution at which he is so registered or otherwise

enrolled.

     (5)    In section 23

                    “authority”—

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                  (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;

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

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

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                    “children’s home” has—

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

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

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(Quality, Improvement and Regulation) (Northern Ireland)

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    12

 

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

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);

5

                    “hospital”—

                  (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

10

Act 2000 (c. 14);

                  (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.

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

15

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;

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

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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

care home for the purposes of the 2003 Order;

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                    “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

60(3) of the Children Act 1989, and

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                  (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)).

 25    Sections 18 to 21: marriage exception

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

35

sections 18 to 21 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.

 26    Sections 18 to 21: sexual relationships which pre-date position of trust

40

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

sections 18 to 21 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.

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

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B would have been unlawful.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    13

 

     (3)    In proceedings for an offence under any of sections 18 to 21 it is for the

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

Familial child sex offences

 27    Sexual activity with a child family member

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

5

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

           (b)           the touching is sexual,

           (c)           the relation of A to B is within section 29, and

           (d)           B is under 18.

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

10

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—

15

           (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,

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

20

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

not exceeding 14 years.

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     (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;

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

30

5 years.

 28    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

be touched by, A,

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           (b)           the touching is sexual,

           (c)           the relation of A to B is within section 29, and

           (d)           B is under 18.

     (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

40

offence unless it is proved—

           (a)           that his belief was unreasonable, or

           (b)           that the other person was under 13.

 

 

 
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