The Main Provisions of the Sexual Offences Act

Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. A responsibility rests on the Government adequately to protect everyone in society from such crimes, especially those who are particularly vulnerable to abuse, such as children and persons with a mental disorder.

We believe that the new framework of sexual offences, notification requirements and orders provided for in this Act will give just such protection.

Part 1 of Sexual Offences Act is a major piece of law reform:

• Modernising 19th century offences
• Removing discrimination against homosexuals from the law
• Plugging loopholes

The new measures are designed to:

• Help close the justice gap – for example, only 7% of reported rapes lead to a conviction - our new proposals on consent target this;
• Give confidence in the CJS by making the law fair and putting victims first; and to
• Give the police up to date criminal offences as tools to do their job

Our new offences will help protect the public:

• Especially those groups whom we know have been targeted for abuse such as children and people with learning disabilities;
• In responding to new challenges posed by 21st century technology; and by
• Strengthening measures to combat the sexual exploitation and trafficking of children

Part 2 of the Act deals with sex offenders:

• Addressing the fear of sexual crime and paedophiles in particular;
• Strengthening the sex offenders register; and by introducing
• New orders to help police manage sex offenders living in the community and to protect children from sexual harm.

Details of proposals

Non-consensual offences and consent

Sections 1, 2, 3, and 4 provide for the non-consensual sex offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. They should be read together with Sections 73 to 79.

Issues surrounding consent are central to establishing whether a sexual offence has taken place. It is therefore vital that the law is crystal clear about what consent means and that it sets out circumstances in which sexual activity is simply not acceptable. This will provide juries with a very clear framework within which to make fair and just decisions.

The Act for the first time contains a definition of consent at section 74 as “a person consents if he agrees by choice and has the freedom and capacity to make that choice”, making clear that submission is not consent.

Under existing law, where a defendant is found to have an honest belief in the consent of the complainant, then even if such a belief is unreasonable, he must be found not guilty. We believe that that is wrong and must be corrected.

The Act introduces a test of reasonableness into the law on consent. Where the prosecution can establish that sexual activity has taken place, that the complainant did not consent to it and that the defendant did not reasonably believe that the complainant consented, the offence will be made out. All this will be for the prosecution to prove. The defendant remains innocent until proved guilty beyond reasonable doubt.

We also believe that the law should set out a list of circumstances in which various presumptions will be made as to the complainant's consent and the defendant's reasonable belief in consent. This is done in Section 75. These are circumstances in which it is most unlikely that consent was freely given, such as where the complainant was unconscious or asleep. Should the prosecution prove that sexual activity took place in one of these circumstances and that the defendant knew that the circumstances existed, there will be a presumption that the complainant did not consent, and that the defendant did not reasonably believe that the other party consented to the sexual activity.

Under 13 offences

We propose a package of measures to give children the greatest possible protection under the law from sexual abuse.

Sections 5, 6, 7 and 8 provide for a number of offences specifically designed to protect children under 13. They make clear that sexual activity with a child under 13 is never acceptable. These offences therefore carry correspondingly high maximum penalties.

Child sex offences and the age of consent

Sections 9 to 15 deal with the child sex offences that involve ostensibly consensual sexual activity with children aged 13 to 15. We have been very careful to ensure that the law covers all the sexual activity we want criminalised. We have, for example, plugged the loophole discovered last year where a man persuaded two children to strip naked in front of him without committing an offence. These offences will criminalise both direct physical sexual activity and activity where no contact is made, such as forcing a child to watch a sexual act. Where no physical contact takes place, the maximum penalty available will be 10 years' imprisonment. The most serious behaviour involving direct physical contact will carry a maximum penalty of 14 years' imprisonment.

Some people have expressed concern that by keeping the current prohibition on underage sex in place, young people engaging in normal experimental and consensual sexual behaviour could be caught up by the law and branded as criminals.

We are sympathetic to these concerns but the current blanket ban on sexual activity involving children under 16 is for their own protection. While it is widely held that a sexual relationship is far more likely to be abusive if the age gap between the two parties is significant, for example between a 15 year old child and a 40 year old adult, the bottom line is that adults do not have a monopoly on child abuse – we cannot assume that sexual relationships between young people will be fully consensual just because they are the same age. We know that children who suffer abuse often do so at the hands of other children or adolescents and the law must be able to protect them.

However, we accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it. It is therefore important that we ensure that these children do not end up being prosecuted or issued with a reprimand or final warning and we will introduce additional safeguards in guidance to ensure this is not the case. The guidance will make clear that there should be no criminal justice intervention if the sexual activity involves children of similar age and there is no evidence of coercion or corruption.

This is a difficult and sensitive area. We believe we have struck the right and sensible balance between acknowledging consensual sexual activity may take place between children under the age of 16 while at the same time protecting all our children from sexual abuse.

Grooming

The Internet has opened up new possibilities for children both for learning and leisure. However, we need to ensure that we tackle those who want to use it to take advantage of the innocence of children. Following the recommendations of the Task Force on Child Protection on the Internet, we are creating a new offence to tackle the grooming of children both on- and off-line. The offence of meeting a child following sexual grooming etc. in Section 15 will catch adults who undertake a course of conduct with a child leading to a meeting where the adult intends to sexually abuse that child either at that meeting or on a subsequent occasion.

Abuse of Trust

Sections 16 to 24 re-enact, amend and extend the offence of abuse of a position of trust. The Sections make it an offence for a person aged 18 or over to involve a child under that age in sexual activity where he is in a specified position of trust in relation to that child, for example where an adult looks after a child in a children's home.

Familial Sexual Offences

Most child abuse takes place in the home. The balance of power within the family, and the close and trusting relationships that exist, make children particularly vulnerable within its environment. We must do all we can to prevent children from being abused by those who are supposed to love and care for them. The familial child sex offences dealt with in Sections 25 to 29 recognise that the modern family unit is often complex. We have therefore defined family relationships to take into account situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or "common law" partnerships.

Sections 64 to 65 cover sex between adult relatives and the relationships covered by these offences are far narrower in scope than for the familial child sex offences.

Persons with a mental disorder or learning disability

The sexual offences review heard very disturbing evidence about the extent and nature of the sexual abuse of people with a mental disorder, including those with a learning disability. It has been estimated, for example, that such people are four times more likely to suffer sexual abuse as those who do not have such a disorder. Existing legislation has offered inadequate redress when such people are sexually abused. It is essential the Act remedies this, while recognising the rights of people with disabilities to a full life, including a sexual life. To this end we are creating three new categories of offences to protect people with a mental disorder. These are provided for in Sections 30 to 44.

Section 30 to 33 cover offences committed against those who because of a very profound mental disorder lack the capacity to consent to sexual activity. Sections 34 to 37 cover sexual activity with a person with a mental disorder, whether or not they have the capacity to consent, by inducement, threat or deception. Whilst the overwhelming majority of those in the care professions act compassionately and responsibly towards those in their care, it is clear that some unscrupulous individuals have taken advantage of their position to sexually abuse those in their care. Sections 38 to 44 make it an offence for those engaged in providing care, assistance or services to someone in connection with a mental disorder to engage in sexual activity with that person, whether or not that person has the capacity to consent.

Sexual Exploitation

Sexual exploitation in all its forms is despicable, but the sexual exploitation of children is particularly abhorrent. This Act brings more coherence and higher penalties to the criminal law surrounding child prostitution, child pornography and trafficking.

This is covered in sections 45 to 60. Our new offences will protect all children up to the age of 18 from prostitution and pornography. The new offence of paying for sex with a child will for the first time criminalise the buyer specifically in an attempt to tackle demand. With the exception of this offence, there is no requirement for the offence to be committed for gain.

The Act creates new offences at Sections 52 to 54, relating to causing, inciting or controlling the prostitution of adults for gain.

The existing trafficking offences have been broadened to cover trafficking for the purpose of committing any sexual offence against the adult or child victim as well as trafficking from one place to another within the UK.

Section 45 extends the Protection of Children Act 1978 (the 1978 Act) to cover indecent photographs of children aged 16 and 17, with an exception for situations where a couple take and possess such images of each other within the context of an enduring family relationship.This will bring us in to line with other countries legislation, and protects all children up to that age from the circulation of indecent photographs of them, particularly on the internet.

Section 46 provides a defence to a charge of “making” under the 1978 Act to ensure that reporting and investigation of indecent photographs of children is not hindered by fear of prosecution.

Other offences

Sections 61-63 provide for preparatory offences, such as administering a substance with intent to commit a sex offence, for example, administering the so-called date-rape drugs. There is also an offence of trespassing with intent to commit a sex offence and of committing an offence with intent to commit a sexual offence. The latter offence is broadly defined but can cover, for example, abduction with intent to rape.

Sections 66 to 71 provide for a number of other offences: sexual activity in a lavatory, indecent exposure, voyeurism, intercourse with an animal and sexual penetration of a corpse.

Sex Offenders register

Sections 80 to 93 re-enact, with amendments, Part I of the Sex Offenders Act 1997, which established the obligation on a sex offender to notify their name and address and any changes to those details with the police. That process is commonly known as registration. Having the information is invaluable to the police in two ways. First, it helps the police monitor sex offenders living in the community. Secondly, it helps in the detection of sexual crime, as the police will immediately know of the whereabouts of any number of potential suspects.

The most important changes to the notification requirements are: reducing the period within which a sex offender must notify the police of a change of details from 14 to 3 days; reducing the amount of time that a sex offender can spend at an address other than his home address before having to notify that address from 14 to 7 days; making all those on the register confirm their details on an annual basis, as at present there is no requirement for them to do so; giving the police the power to check the fingerprints and take a photograph of a sex offender each time a notification is made, not just on his initial notification; and requiring sex offenders to provide their national insurance number when making a notification.

Notification orders

However, the current requirements apply only to those convicted of offences in the United Kingdom. It is important that we can keep track of all known sex offenders who are in this country, whether they have been convicted of an offence here or abroad. We have therefore introduced a new notification order found in Sections 97 to 103 to make those convicted of sex offences abroad, whether they are British citizens or foreign nationals, subject to the same notification requirements if they come to the United Kingdom.

Sexual offences prevention orders

Additional protection will be offered by sexual offences prevention orders in Sections 104 to 113, which combine existing sex offender orders and restraining orders, and will allow for whatever prohibitions on an offender are necessary to protect the public. For example, an offender could be prohibited from entering children's playgrounds or visiting swimming baths. Those orders will be available in respect of persons convicted of violent offences and who present a sexual risk, as well as those convicted of sexual offences. Breach of one of those orders will be punishable by a maximum penalty of five years imprisonment.

Foreign travel orders

Sections 114-122 introduce a new foreign travel order banning those who have been convicted of a sex offence against a child under 16 from travelling abroad in certain circumstances. An order, if granted, can ban an offender from travelling to a specific country (or countries), anywhere in the world or anywhere in the world except a specified country or, where the risk warrants it, from travelling abroad at all.

Risk of sexual harm orders

The new risk of sexual harm order, provided for in Sections 123 to 129, will be used to prevent harm to children from sexually explicit communication or conduct where the adult has already engaged in such behaviour towards a child. This order could be used, for example, to stop an adult sending a child adult pornography or indecent text messages by mobile phone.