Explanatory Notes to Sexual Offences Act 2003 2003 Chapter 42
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THESE NOTES REFER TO THE SEXUAL OFFENCES ACT 2003(C.42) WHICH RECEIVED ROYAL ASSENT ON 20 NOVEMBER 2003 SEXUAL OFFENCES ACT 2003 EXPLANATORY NOTESINTRODUCTION1. These explanatory notes relate to the Sexual Offences Act 2003 which received Royal Assent on 20 November 2003. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the act. they are not, and are not meant to be, a comprehensive description of the act. so where a section or part of a section does not seem to require any explanation or comment, none is given.3. Part 1 of the Act extends only to England and Wales, with the exception of sections 15-24, 46-54, 57-60, 66 to 72, 78 and 79 which extend to Northern Ireland. Part 2 of the Act extends to England, Wales, Northern Ireland and, save for sections 93 and 123-129, Scotland.BACKGROUND4. The Government published the White Paper Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences (Cm 5668) in November 2002. It is available on the Home Office website at www.sexualoffencesbill.homeoffice.gov.uk. The White Paper set out the Government's intentions for reforming the law on sexual offences and for strengthening measures to protect the public from sexual offending. The Government's proposals were based on the recommendations made by two review teams and subsequent public consultation. The recommendations made by the review teams were published in two documents: Review of Part 1 of the Sex Offenders Act 1997 (2001) and Setting the Boundaries (2000). SUMMARY5. The Act is in three Parts:6. Part 1 makes new provision about sexual offences. It covers the non-consensual offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. It defines "consent" and "sexual" and sets out evidential and conclusive presumptions about consent. It covers child sex offences and offences involving an abuse of a position of trust towards a child. Familial child sex offences and offences involving adult relatives are provided for, as are offences designed to give protection to persons with a mental disorder. The age of a "child" in the Protection of Children Act 1978 has been amended to 18, and defences are provided for in limited cases where the child is 16 or over and the defendant is the child's partner. A limited defence is also introduced to the offence of "making" an indecent photograph or pseudo-photograph of a child where the purpose of the "making" is to combat crime. This Part also covers offences relating to prostitution, child pornography, and trafficking. It provides for preparatory offences, such as administering a substance with intent to commit a sexual offence, and a number of miscellaneous offences, such as voyeurism and intercourse with an animal. Section 72 provides that there is extra-territorial jurisdiction for many acts which, if committed in England and Wales or Northern Ireland, would amount to offences under Part 1 committed against a child under 16 or (in the case of Northern Ireland) under 17. The Part extends to England and Wales and some provisions also extend to Northern Ireland.7. Part 2 contains measures for protecting the public from sexual harm. Part 1 of the Sex Offenders Act 1997 has been re-enacted with a number of amendments. A notification order enabling the notification requirements to be applied to offenders with convictions abroad has been created. Sex offender orders (s.2 of Crime and Disorder Act 1998) and restraining orders (s.5 of Sex Offenders Act 1997) have been combined into a new civil preventative order - a sexual offences prevention order. Risk of sexual harm orders, specifically designed to protect children from sexual harm, have been created, as have foreign travel orders, which can be used to prevent an offender with a conviction for a sex offence against a child from travelling to countries where he is at risk of abusing children. Part 2 extends to England and Wales and Northern Ireland, and, save for Schedule 4 and the risk of sexual harm orders, to Scotland.8. Part 3 contains general provisions relating to the Act, including minor and consequential amendments and commencement provisions.TERRITORIAL APPLICATION: WALES9. The Act does not affect the powers of the National Assembly for Wales.COMMENTARY ON SECTIONSPart 1: Sexual OffencesSection 1: Rape10. Section 1 makes it an offence for a person (A) intentionally to penetrate with his penis the vagina, anus or mouth of another person (B) without that person's consent if A does not reasonably believe that B consents. Subsection (2) provides that whether a belief in consent is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. This and the offence in section 5 are the only offences that can only be committed by a male, because they relate to penile penetration. Subsection (3) provides that sections 75 and 76 apply to this offence. Sections 75 and 76 deal with evidential and conclusive presumptions about consent. Section 2: Assault by penetration11. Section 2 covers the situation where a person (A) intentionally penetrates the vagina or anus of another person (B). The offence is committed where the penetration is by a part of A's body (for example, a finger) or anything else, (for example, a bottle); where the penetration is sexual (as defined in section 78), so that it excludes, for example, intimate searches and medical procedures; where B does not consent to the penetration; and where A does not reasonably believe that B consents. What is said in the note to section 1 about whether a belief in consent is reasonable also applies here. This and all subsequent offences in the Bill save the offence at section 5 can be committed by a male or female, against a male or female. Subsection (3) provides that sections 75 and 76 apply to this offence. Sections 75 and 76 deal with evidential and conclusive presumptions about consent.Section 3: Sexual assault12. Section 3 makes it an offence for a person (A) intentionally to touch sexually another person (B) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to section 1 about whether a belief in consent is reasonable also applies here. The meaning of "touching" is explained at section 79(8); "sexual" is defined at section 78. The effect of these sections is that the offence covers a wide range of behaviour including, for example, rubbing up against someone's private parts through the person's clothes for sexual gratification. Subsection (3) provides that sections 75 and 76 apply to this offence. Sections 75 and 76 deal with evidential and conclusive presumptions about consent.Section 4: Causing a person to engage in sexual activity without consent13. Section 4 makes it an offence for a person (A) intentionally to cause another person (B) to engage in sexual activity (as defined in section 78) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to section 1 about whether a belief in consent is reasonable also applies here. A may cause B to engage in sexual activity with A (for example, a woman who compels a man to penetrate her); on B himself (for example, where one person forces someone else to masturbate himself); or with another person (for example, where one person makes someone else masturbate a third person). Subsection (3) provides that sections 75 and 76 apply to this offence. Sections 75 and 76 deal with evidential and conclusive presumptions about consent. Section 5: Rape of a child under 1314. Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under the age of 13. Whether or not the child consented to this act is irrelevant.Section 6: Assault of a child under 13 by penetration15. Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under the age of 13 with a part of his body, such as a finger, or with anything else, such as bottle or other object. The penetration must be sexual, as defined in section 78. Whether or not the child consented to the act is irrelevant.Section 7: Sexual assault of a child under 1316. Section 7 makes it an offence for a person to touch sexually a child under the age of 13. The meanings of "touching" and "sexual" are the same as for section 3. Whether or not the child consented to the act is irrelevant.Section 8: Causing or inciting a child under 13 to engage in sexual activity17. Section 8 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity. In relation to caused sexual activity, the offence covers the same situations as does the offence under section 4 except that, for this offence, whether or not the child consented to engaging in the sexual activity is irrelevant. This section also covers the situation where incitement takes place but the sexual activity itself does not. For example, a person may incite a child to engage in sexual activity with him (for example, where a person incites the child to masturbate him), or on the child himself (for example, where a person incites the child to strip) or with a third person (for example, where someone incites the child to have sexual intercourse with his friend).Section 9: Sexual activity with a child18. Section 9 makes it an offence for a person (A) aged 18 or over to intentionally engage in sexual touching of a child under 16. Where the child is aged 13 or over but under 16, the prosecution must prove that A did not reasonably believe that he was 16 or over. "Touching" is explained at section 79(8) and covers all forms of physical contact including penetration; "sexual" is defined at section 78. Whether or not the child consented to the activity is irrelevant. Section 10: Causing or inciting a child to engage in sexual activity19. Section 10 makes it an offence for a person (A) aged 18 or over, intentionally to cause or incite a child aged under 16 to engage in sexual activity (as defined at section 78). Where the child is aged 13 or over, but under 16, the prosecution must prove that A did not reasonably believe that he was 16 or over. The sexual activity which is caused or incited may be activity with A (for example, where A causes or incites the child to have sexual intercourse with him), on the child himself (for example, where A causes or incites the child to strip for A's sexual gratification) or with a third person (for example, where A causes or incites the child to have sexual intercourse with A's friend). The incitement constitutes an offence whether or not the activity incited actually takes place. Whether or not the child consented to the activity caused or incited, or to the incitement, is irrelevant. Section 11: Engaging in sexual activity in the presence of a child20. Section 11 makes it an offence for a person (A) aged 18 or over intentionally to engage in sexual activity (as defined in section 78), in order to gain sexual gratification, when a child aged under 16 is present or in a place from which A can be observed. Where the child is aged 13 or over but under 16, the prosecution must prove that A did not reasonably believe that he was 16 or over. The offence is committed if A knows or believes that the child is aware that he is engaging in the activity or intends that the child should be aware of this. This offence would cover, for example, A masturbating himself in front of a child, or A masturbating himself in the presence of the child to whom he is describing what he is doing, perhaps because the child is covering his face. It would also cover the situation where A performs a sexual act in a place where he knows that he can be seen by a child, for example via a webcam.Section 12: Causing a child to watch a sexual act21. Section 12 makes it an offence for a person (A) intentionally to cause a child aged under 16, for the purpose of the sexual gratification of A, to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. Where the child is aged 13 or over but under 16, the prosecution must prove that A did not reasonably believe that he was 16 or over. The definition of sexual activity is at section 78. A person who, for his own sexual gratification, forces a child to watch two people have sex, or who forces a child to watch a pornographic film, would commit this offence. Section 13: Child sex offences committed by children or young persons22. Section 13 makes it an offence for a person aged under 18 to do anything that would be an offence under any of sections 9 to 12 if he were aged 18 or over. The purpose of this section is to provide a lower penalty where the offender is aged under 18. In practice (although there is no provision about this in the Act) decisions on whether persons under 18 should be charged with child sex offences will be made by Crown Prosecutors in accordance with the principles set out in the Code for Crown Prosecutors. In deciding whether it is in the public interest to prosecute these offences, where there is enough evidence to provide a realistic prospect of conviction, prosecutors may take into consideration factors such as the ages of the parties; the emotional maturity of the parties; whether they entered into a sexual relationship willingly; any coercion or corruption by a person; and the relationship between the parties and whether there was any existence of a duty of care or breach of trust.Section 14: Arranging or facilitating commission of a child sex offence23. Section 14 makes it an offence for a person (A) intentionally to arrange or facilitate any action which he intends to do, intends another person to do or believes that another person will do, in any part of the world, which will involve an offence being committed against a child under any of sections 9 to 13. 24. An example of the first two limbs of the offence is where A approaches an agency requesting the agency to procure a child for the purpose of sexual activity either with himself or with a friend. The offence is committed whether or not the sex takes place. An example of the third limb of the offence is where A intentionally drives another person (X) to meet a child with whom he knows X is going to have sexual activity. A may not intend X to have child sexual activity, but he believes that X will do so if he meets that child. 25. Subsection (2) provides an exception for anyone whose actions are intended to protect the child. Subsection (3) defines the concept of acting for the protection of a child as acting to protect a child from pregnancy or sexually transmitted infection, to protect the physical safety of a child or to promote the emotional wellbeing of a child by the giving of advice. The exception only applies if the person is not causing or encouraging an activity that would constitute an offence under sections 9 to 13 and if he is not acting for the purpose of obtaining sexual gratification. An example would be where a health worker believes that a person is having sex with a child under 16. He advises that it is unlawful to have sex with children under 16 but supplies him with condoms because he believes that the person will otherwise have sex with the child without using any protection.Section 15: Meeting a child following sexual grooming etc.26. Section 15 makes it an offence for a person (A) aged 18 or over to meet intentionally, or to travel with the intention of meeting, a child aged under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if A reasonably believes the child to be 16 or over. 27. The section is intended to cover situations where an adult (A) establishes contact with a child through, for example, meetings, telephone conversations or communications on the Internet, and gains the child's trust and confidence so that he can arrange to meet the child for the purpose of committing a "relevant offence" against the child. The course of conduct prior to the meeting that triggers the offence may have an explicitly sexual content, such as A entering into conversations with the child about the sexual acts he wants to engage her in when they meet, or sending images of adult pornography. However, the prior meetings or communication need not have an explicitly sexual content and could for example simply be A giving the child swimming lessons or meeting her incidentally through a friend. 28. The offence will be complete either when, following the earlier communications, A meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place. 29. The evidence of A's intent to commit an offence may be drawn from the communications between A and the child before the meeting or may be drawn from other circumstances, for example if A travels to the meeting with ropes, condoms and lubricants. 30. Subsection (2)(a) provides that A's previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example A emailing the child from abroad, A and the child speaking on the telephone abroad, or A meeting the child abroad. The travel to the meeting itself must at least partly take place in England or Wales or Northern Ireland. Section 16: Abuse of position of trust: sexual activity with a childSection 17: Abuse of position of trust: causing or inciting a child to engage in sexual activitySection 18: Abuse of position of trust: sexual activity in the presence of a childSection 19: Abuse of position of trust: causing a child to watch a sexual act31. These sections re-enact and amend the offence of abuse of position of trust under sections 3 and 4 of the Sexual Offences (Amendment) Act 2000. The sections each provide that it is an offence for a person (A) aged 18 or over intentionally to behave in certain sexual ways in relation to a child aged under 18, where A is in a position of trust (as defined in section 21) in respect of the child. The prohibited behaviour in each of the sections is identical to that prohibited by the child sex offences in sections 9, 10, 11 and 12 respectively, except that for the abuse of position of trust offences, the child may be 16 or 17. 32. Except where the child is under 13, one of the requirements of the offence is that A does not reasonably believe that the child is 18 or over, and A is subject to an evidential burden in relation to this aspect of the offence (subsection (3) of each section). An evidential burden means that, unless A shows from the evidence that there is an arguable case as to whether he reasonably believed the child to be 18 or over, it is presumed that he did not reasonably believe this. Where the child is under 13, the offence is committed regardless of any belief A might have in relation to the child's age. 33. The effect of subsection (1)(d) (or in the case of section 18, subsection (1)(e)) is that, where A is in a position of trust by virtue of one of the first four categories of position of trust set out at section 21, the prosecution must prove, in addition to the other requirements, that he knew or could reasonably have been expected to know of the facts placing him in a position of trust with the child. Subsection (4) of each section puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of the facts giving rise to the position of trust, it is presumed that he did know or could reasonably have been expected to know them. The first four categories of position of trust all concern situations where A looks after persons under 18 at an institution and the child is at that institution. Subsection (4) is designed to cover cases where, for example, the institution where A works is very large or has a number of different sites, and A may not therefore know that the child is at the institution.Section 20: Abuse of position of trust: acts done in Scotland34. Section 20 provides that any act that would, if done in England, Wales or Northern Ireland, constitute an offence under sections 16 to 19 of this Act, also constitutes an offence under those sections if carried out in Scotland. Section 21: Positions of trustSection 22: Positions of trust: interpretation35. Section 21 defines "position of trust" for the purposes of the offences in sections 16, 17, 18 and 19. Subsection (1)(b) of section 21 also provides a power for the Secretary of State to specify further conditions that will constitute a position of trust. The power is subject to the affirmative parliamentary procedure (section 137(2)). 36. The conditions in subsections (2) to (5) use the term "looks after". This term is defined, in broad terms, at subsection (2) of section 22. 37. Subsection (2) applies where the child is detained following conviction for a criminal offence, for example in a secure training centre or a young offenders institution. 38. Subsection (3) applies to a wide range of settings in which young people are accommodated, including foster care; residential care (local authority, private or voluntary, including secure accommodation); and semi-independent accommodation. 39. Subsection (4) covers places where young people with medical conditions, physical or learning disabilities, mental illness or behavioural problems might be accommodated and includes NHS, private and voluntary accommodation. 40. Subsection (5) covers the situation where the child is receiving education in an educational institution. This concept is further explained at subsection (4) of section 22. The effect of that subsection is that where the child is registered at a college but receives education at another college with which the former has arrangements, A will still be in a position of trust in relation to the child if A works at the former college. 41. Subsection (6) covers children's guardians appointed under Northern Ireland legislation. 42. Subsection (7) includes persons who, in their capacity as, for example, Connexions Personal Advisers ("CPAs") look after children on an individual basis. The definition of looking after a child on an individual basis, for the purposes of this subsection, and subsections (10) (11) and (13) is at section 22(3). The reference at this definition to contact "by other means" (section 22(3)) is designed to include persons such as CPAs whose normal means of providing support to children is by telephone or via the Internet. 43. Subsection (8) covers those who have unsupervised contact with children in the context of their duties under section 20 or 21 of the Children Act 1989 and equivalent legislation in Northern Ireland. Such persons arrange accommodation for children who, for whatever reason, are not being looked after by those who have parental responsibility for them, and check that their welfare is being looked after once such accommodation has been found. They include local authority staff such as social workers and family centre staff who visit the accommodation in which a child has been placed in order to oversee the child's welfare. 44. Subsection (9) covers persons who have unsupervised contact with children by virtue of their appointment as children and family reporters under section 7 of the Children Act 1989 or under Article 4 of the Children (Northern Ireland) Order 1995. These persons present reports for the court relating to children's welfare. 45. Subsection (10) covers personal advisers who look after children on an individual basis (as defined at section 22(3)) having been appointed by a local authority under the Children Act 1989. Such personal advisers generally provide help and support to children aged 16-17 who have been in local authority care. 46. Subsection (11) covers persons who supervise children pursuant to a care order, supervision order or educational supervision order under various provisions in the Children Act 1989 or the Children (Northern Ireland) Order 1995 and, in that capacity, look after children on an individual basis (again, as defined at section 22(3)). 47. Subsection (12) covers a range of persons who, in the course of their duties, regularly have unsupervised contact with children. These are officers of the Children and Family Court Advisory and Support Service appointed to act as children's guardians under section 41(1) of the Children Act 1989; persons appointed as children's guardians in relation to adoption proceedings under Rules 6 and 18 of the Adoption Rules 1984; and persons appointed under Rule 9.5 of the Family Proceedings Rules 1991 to act as children's guardians ad litem in private law Children Act 1989 proceedings and cases determining wardship. 48. Subsection (13) includes adults who supervise children under bail supervision, a community sentence (for example a probation order, combination order, community service order, supervision order, attendance centre order) and children under conditions following release from detention resulting from a criminal conviction (e.g. those released on licence from a young offenders institution) This would include members of Youth Offending Teams provided they have sufficient contact and connection with the child or someone providing counselling or drug rehabilitation services to the child pursuant to the terms of a court order.
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