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Rape and Sexual Offences - Chapter 2: Sexual Offences Act 2003 - Principal Offences, and Sexual Offences Act 1956 - Most commonly charged offences
Revised: 12 April 2019|Legal Guidance
Sexual Offences Act 2003 - Principal Offences
Selecting Charges
Non-Consensual Offences
Rape (section 1)
Assault by penetration (section 2)
Sexual Assault (section 3)
Causing sexual activity without consent (section 4)
Offences Against Children
Offences against children under 13 (sections 5 - 8)
Section 5: Rape of a child under 13
Section 6: Assault of a child under 13 by penetration
Section 7: Sexual assault of a child under 13
Section 8: Causing or inciting a child under 13 to engage in sexual activity
Factors: whether or not to prosecute young defendants
Offences against children under 16 (sections 9 - 13)
Section 9: Sexual activity with a child
Section 10: Causing or inciting a child to engage in sexual activity
Section 11: Engaging in sexual activity in the presence of a child
Section 12: Causing a child to watch a sexual act
Section 13: Child sex offences committed by children or young persons
Other related offences against children (under 16)
Arranging and facilitating a child sex offence (section 14)
Meeting a child following sexual grooming (section 15, as amended)
Offences against children under 18
Abuse of position of trust (Sections 16 - 24
Familial child sex offences
Indecent photographs of children (sections 45 and 46)
Abuse of children through prostitution or pornography (sections 47 - 50)
Offences against persons with a mental disorder
Offences against persons with a mental disorder impeding choice (sections 30 - 33)
Offences where there are inducements etc. to persons with a mental disorder (Sections 34 - 37)
Offences by care workers against persons with a mental disorder (sections 38 - 41)
Sexsomnia - Sleepwalking as a defence in Sexual Offence cases
Notification requirements
Ancillary Orders
Sexual Offences Act 1956 - Most commonly charged offences
Unlawful Sexual Intercourse
Indecency with Children Act 1960
Specimen charges
Joinder
Alternative charges
Evidence of previous acquittals
Registration/Notification of Sex Offenders
Sex with an adult relative (sections 64 and 65 Sexual Offences Act 2003)
Section 1 of the Voyeurism (Offences) Act 2019 – 'upskirting'
The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004 and applies to all offences committed on or after that date. Its purpose was to strengthen and update the law on sexual offences, whilst improving the protection of individuals from sexual offenders. The Act repealed almost all of the previous statute law in relation to sexual offences.
When it is not possible to prove whether the offence occurred before or after 1st May 2004, section 55 Violent Crime Reduction Act 2006 applies. In order to rely on section 55, each offence should be charged in the alternative under the old and new regimes. It will be conclusively presumed that the time when the conduct took place was when the old law applied, if the offence attracted a lesser maximum penalty: otherwise it will be presumed that the conduct took place after the implementation of the new law.
The Act is divided into two parts. Part 1 sets out the available sexual offences and Part 2 the notification requirements (sometimes referred to as the sex offenders register) and the range of civil preventative orders.
The Act refers to the defendant as 'A' and the complainant as 'B', a practice followed in this Guidance.
This guidance seeks to clarify issues surrounding the most important measures in the Act, such as consent, non-consensual offences, offences against children and vulnerable adults. It does not deal with all offences in the Act, the notification requirements in detail or the civil preventative orders.
Useful sources of information include:
The text of the Act and the explanatory notes can be accessed on-line at www.legislation.gov.uk
Home Office guidance on Part 1 and Part 2 of the Act.
Sentencing Council Definitive Guideline - Sexual offences Act 2003
The variety of offences contained in the Act frequently provides prosecutors with a choice of charges. When making such a choice prosecutors should choose the most appropriate charge to fit the circumstances of the case, taking account of the courts' sentencing powers. As a general rule, where the circumstances of a case match a particular offence specified in the Act, that offence should be charged. For example section 25 (familial child sex offence) where the victim is 14 should be charged rather than section 9 (sexual activity with a child), so long as all the elements can be proved. Adopting this approach makes clear the context in which an offence is committed.
Offences against children under 13, where age can be proved, should be charged under sections 5-8, where the circumstances fall within those sections. For example section 5 (rape of a child under 13) should be preferred rather than section 1 rape to reflect the offence was committed against a child.
Conversely, when reviewing cases involving children under 16 and 18 prosecutors should select more serious charges involving proof of absence of consent over those contained in sections 9 to 12, where all the elements can be proved. So, for example, section 1 rape should be preferred to section 9 sexual activity with a child under 16 where the elements of rape are satisfied.
Consent (see Rape and Sexual Offences: Chapter 3)
A definition of 'sexual' is set out in section 78 and applies to all the offences in Part 1, with the exception of section 71 (sexual activity in a public lavatory).
In deciding whether an activity is sexual, look first at the nature of the activity. If the activity is by its nature sexual (e.g. sexual intercourse, masturbation), then it is sexual.
Where the nature of the activity may or may not be sexual, prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual (e.g. R v Price The Times 20 August 2003, where stroking a woman's leg over trousers and below the knee was capable of amounting to an indecent assault).
Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.
Section 79 defines terms for the purposes of the Act.
The offences in the Sexual Offences Act 2003 are crimes of basic intent - R v Lee Heard (CA) (2006)
Sections 1-4 deal with offences where the defendant (A) engages in sexual activity with the complainant, without the complainant's (B's) consent.
The elements of rape are:
(A) intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
(B) does not consent to the penetration, and
(A) does not reasonably believe that (B) consents
Penetration of the mouth is included.
Rape is still a crime of basic intent, and drunkenness is no defence.
Rape is indictable only and carries a maximum penalty of life imprisonment.
Evidential considerations
Rape cases can be difficult to prove because the evidence is frequently limited to the victim's word against the defendant's, with the major issue being whether or not the victim consented. Prosecutors should work with police investigators to build strong cases. Prosecutors should only make full charging decisions in rape cases having reviewed a pre-charge report in accordance with the Directors Guidance. The only exception should be where bail is being withheld when the threshold test may apply.
Charging practice
Prosecutors should specify in the indictment whether the vagina, anus or mouth was penetrated. Where penetration of more than one orifice occurs, separate counts of rape should be preferred. The Court of Appeal in R v K [2008] EWCA Crim 1923 held that where it is unclear whether penetration was of the vagina or of the anus, it is permissible to allege penetration of 'the vagina or the anus' The jury will be entitled to convict if they are sure that there was non-consensual penetration of one or the other by the defendant with his penis.
Code for Crown Prosecutors - considerations
A prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. Rape is so serious that a prosecution is almost certainly required in the public interest.
The elements of assault by penetration are:
A person (A) intentionally penetrates the vagina or anus of another person (B) with a part of their body or anything else:
The penetration is sexual
(A) does not reasonably believe that (B) consents.
The meaning of sexual, consent, reasonable belief and the evidential and conclusive presumptions all apply to this offence.
There has to be penetration of the vagina or anus but not the mouth.
Penetration is by any part of (A's) body (e.g. finger, tongue, toe) or by anything else (e.g. bottle).
Offence can be committed by either gender
This offence should be charged where there is insufficient evidence to charge rape, for example, if the victim is unsure if penetration was by a penis or something else.
The offence is indictable only with maximum penalty of life imprisonment.
This offence is in essence similar to rape and a prosecution is almost certainly required in the public interest.
The elements of the offence of sexual assault are:
A person (A) intentionally touches another person (B)
the touching is sexual
(B) does not consent to the touching, and
The meaning of sexual, consent (See Rape and Sexual Offences: Chapter 3), reasonable belief and evidential and conclusive presumptions apply to this offence.
Touching is widely defined and includes with any part of the body, or with anything else, and can be through clothing. In R v H (Karl Anthony) [2005] 2 Cr. App. R. 9, the Court of Appeal held that the touching of an individual's clothing was sufficient to amount to 'touching' for the purposes of section 3. Where touching was not automatically by its nature sexual, it was possible to ascertain whether the touching had been sexual by determining whether by its nature it might have been sexual and if so whether in the circumstances the purpose had in fact been sexual.
Touching includes touching amounting to penetration e.g. kissing. Where there is sufficient evidence, penile penetration of the vagina, anus or mouth should be charged as rape and penetration of the vagina or anus with any part of a person's body or other object should be charged as assault by penetration.
Either gender can commit the offence.
The offence is either way with the statutory maximum penalty in the Magistrates' court or 10 years' imprisonment in the Crown Court.
Where the offender is under 18, the offence comes within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (Schedule 6 of the 2003 Act).
If touching does not occur, then consider an attempt.
Various activities previously covered by the offence of 'indecent assault' now fall within the definitions of offences under the 2003 Act (e.g. assault by penetration, child sex offences and vulnerable adults subjected to a sexual assault). This means that the offence of sexual assault (section 3) will largely now be used in relation to lesser forms of sexual assault than previously.
The exact nature of the sexual activity involved will be a key factor in assessing the seriousness of the offence e.g. on the upper end of the scale, using one's naked genital organs to stroke, rub, press or touch the naked genital organs of another to at the lower end of the scale of patting someone on the bottom through clothing. There may be the presence of aggravating features that make the offence significantly more serious, such as, abuse of position, use of drugs or other substances, use of violence/coercion, use of a weapon in the offence, repeated offending etc.
The elements of this offence are:
A person (A) intentionally causes (B) to engage in activity
the activity is sexual
(B) does not consent to engaging in the activity
This offence covers situations where, for example:
a victim is forced to carry out a sexual act involving their own person, such as masturbation,
to engage in sexual activity with a third party, who may be willing or not, or
to engage in sexual activity with the offender e.g. woman forces a man to penetrate her.
The meaning of sexual, consent (see Rape and Sexual Offences: Chapter 3) reasonable belief and the evidential and conclusive presumptions apply to this offence.
The offence can be committed by words alone e.g. defendant makes his victim carry out a sexual act, such as masturbation, that only involves the victim.
The mode of trial and sentence varies depending on whether there is or is not penetration.
One of the purposes of this offence, in addition to the wider range of sexual activity, is to create a female equivalent of the offence of rape, which carries the same level of punishment for what amounts to the same type of offending behaviour.
The offence carries life imprisonment if penetration is involved, i.e. of B's mouth with a penis, penetration of a person's anus or vagina with a part of B's body or by B with anything else, or penetration of a person's mouth with B's penis.
Otherwise it is an either way offence carrying a maximum of 10 years' imprisonment.
In determining the seriousness of the offence, the two main factors will be the nature of the sexual activity and the level of the offender's culpability. In addition there may be aggravating factors present, e.g. force, coercion, use of a weapon, etc.
This section creates two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, prosecutors should specify whether the sexual activity is penetrative or non-penetrative.
The 2003 Act identifies three categories of offences against children of different age. They are:
Offences against those under 13;
Offences against those under 18.
Sections 5-8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
The under-13 offences overlap to a very significant extent with the child sex offences (ss. 9 to 15 of the 2003 Act), which are designed to protect children under 16. However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect such children. This is to ensure the availability of the higher maximum penalties for the under-13 offences.
During the passage of the Sexual Offences bill, Lord Falconer said:
"A fundamental justification for the under-13 offence is the age and vulnerability of the victim. We do not think it is right that where the victim is 12 or under question of consent should arise. There will be many cases where it would be utterly invidious for a 12 year old or under to have to give evidence in relation to consent."
These are offences of strict liability as to age. The prosecution has to prove only two facts. First, the intentional sexual activity and second the age of the complainant at the date of the sexual activity, e.g. a certified copy of a birth certificate together with evidence of identity.
Note: R v G [2008] UKHL 37; [2009] Offences of strict liability are compatible with A6.2 ECHR.
Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.
In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing. On no account should a section 1 rape count be added as an alternative.
When dealing with a Newton hearing in such circumstances, prosecutors must comply with the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2009]. See also Rape and Sexual Offences: Chapter 18 and Sentencing - Overview - Newton hearings
Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina, or anus of a child under 13 with a part of his body, or with anything else.
A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.
Section 7 makes it an offence for a person to touch a child under 13 sexually.
Section 8 makes it an offence for a person intentionally to cause or incite a child (B) under the age of 13 to engage in sexual activity.
There is no defence of mistaken reasonable belief in age of the complainant.
It is a defence against aiding, abetting or counselling an offence (except section 8) if the purpose is to:
Protect the child from sexually transmitted infection
Protect the physical safety of the child
Protect the child from becoming pregnant
Promote the child's emotional well-being by the giving of advice unless the purpose is to obtain sexual gratification or to cause or encourage the relevant sexual act (section 73).
Section 8 covers the wide range of activity as in section 4, but also covers the situation where a person incites (encourages) the child to take part in the sexual activity, even if the activity itself does not take place.
Sections 5 and 6 are indictable only and carry a maximum sentence of life imprisonment.
Section 7 is triable either way and carries a maximum sentence of 14 years on indictment.
Section 8 is indictable only and carries a maximum sentence of life imprisonment if the activity involves:
Penetration of (B's) anus or vagina;
Penetration of (B's) mouth with a person's penis;
Penetration of a person's anus or vagina by (B) or
Penetration of a person's mouth with (B's) penis.
Section 8 creates two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie[1984] AC 463.
In drafting charges and indictments, prosecutors should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.
Non-penetrative activity is either way and carries a maximum sentence of 14 years on indictment.
In determining the level of sentence, the same degree of seriousness should apply whether a person 'causes' or 'incites' the activity.
The 2003 Act protects all children from engaging in sexual activity at an early age, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent. The intention behind sections 5-8 is to provide maximum protection to very young children.
Code for Crown Prosecutors - Adult defendant
A prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity in sections 5-8, a prosecution will normally be required.
Code for Crown Prosecutors - Child defendant (under 18)
See CPS Legal Guidance on Youth Offenders including sections on:
Principles guiding the decision to prosecute
Sexual Offences and Child Abuse by Young Offenders
Rape and other offences against children under 13 (sections 5 to 8 Sexual Offences Act 2003)
Child sex offences committed by children or young persons
Familial sexual offences committed by young people
See also Rape and Sexual Offences: Chapter 11.
The overriding public concern is to protect children. It was not Parliament's intention to punish children unnecessarily or for the criminal law to intervene where it is wholly inappropriate. During the passage of the bill, Lord Falconer said:
"Our overriding concern is to protect children, not to punish them unnecessarily. Where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest. Nor would it be in the best interests of the child ..."
There are two important points to note:
(1) The Directors Guidance on Charging (fourth edition: January 2011) states that offences under the Sexual Offences Act 2003 committed by or upon persons under the age of 18 years must always be referred to the CPS for a charging decision, whether admitted or not
(2) Youth Offender Specialists should review all files involving youth offenders and take all major decisions in relation to those cases, in particular, whether or not a prosecution should take place.
Chief Crown Prosecutors must be notified of any case where at least one of the complainants and at least one of the suspects are under the age of 13. This includes cases which are diverted from prosecution, whether on evidential or public interest grounds.
All such cases must be reviewed by a prosecutor who is both a rape specialist and a youth specialist. All advocates conducting these cases must have a rape specialism and should also have a youth specialism.
Where a sexual offence committed by a child passes the evidential stage of the Full Code Test, it is essential that when considering the public interest, prosecutors have as much information as possible from sources including the police, Youth Offending Teams (YOTs), and any professionals assisting those agencies, about the defendants background and the circumstances surrounding the alleged offence, as well as any information known about the victim. Failure to do so may lead to judicial review of any decision R v Chief Constable of Kent ex parte L and R v DPP ex parte B [1991] 93 Cr App R 416.
Views expressed by the victim, and where appropriate the victim's family, should be taken into account in accordance with the Code.
Furthermore prosecutors must consider the interests of the youth when deciding whether it is in the public interest to prosecute (paragraph 4.12 (d) of the Code for Crown Prosecutors).
In reaching the decision to prosecute a youth for a sexual offence, prosecutors should ensure that they not only apply the Code in conjunction with any relevant CPS policy on youth offenders and the Sexual Offences Act, but that they record that they have done so in their review of the case.
In deciding whether or not to prosecute, prosecutors should have careful regard to the factors below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. The factors are:
The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led him or her to commit the offence;
The relevant ages and levels of maturity of the parties, i.e. the same or no significant disparity in age;
Whether the complainant entered into sexual activity willingly, i.e. did the complainant understand the nature of his or her actions and that she/he was able to communicate his or her willingness freely;
Parity between the parties in regard to sexual, physical, emotional and educational development;
The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;
Whether there is any element of exploitation, coercion, threat, deception, grooming, seduction, manipulation or breach of trust in the relationship;
Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her/ his age was in fact made;
The nature of the activity e.g. penetrative or non-penetrative activity;
The sexual and emotional maturity of the parties and any emotional or physical effects resulting from the conduct; and
The likely impact of any prosecution on the parties.
In R v G and the Secretary State for the Home Department (above), G was a 15 year old boy who had been charged with section 5 rape of a girl aged 12 years. The defence argued that a charge under section 5 amounted to a disproportionate interference with the defendant's right to privacy under Article 8. On the facts of the case, they argued, section 5 was a disproportionate response to any legitimate aim that the government was pursuing, and that a charge under Section 9 SOA 2003 (sexual activity with a child) or Section 13 SOA 2003 (sex offences on a child that are committed by a child or young person) would have been correct.
The Court held Article 8.1 may be infringed if a child is prosecuted for an offence under Section 5 and such interference may not be justified under Article 8.2. Any infringement will turn on the individual facts of each case and in this matter, the initial Section 5 charge was correct and there was no duty on the judge to substitute a Section 13 charge.
However, in many cases the issue of consent will not be resolved until after a Newton hearing has been held. If the facts are found to be not as serious as initially presented to the court, the judge can pass an appropriate sentence. This will ensure that there is no illegal interference with a defendant's Article 8 rights.
The 2003 Act provides that the age of consent is 16. Sections 9-13 clarify that any sexual activity involving consenting children under 16 is unlawful.
Sections 9-12 cover adult defendants.
The elements of the offence are:
(A) aged 18 or over intentionally touches (B)
the touching is sexual, and
either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
(B) is under 13.
(A) aged 18 or over intentionally causes or incites another person (B) to engage in an activity
the activity is sexual, and
either (B) is under 16 and (A) does not reasonably believe that B is 16 or over, or
aged 18 or over intentionally engages in sexual activity
(A's) purpose is to obtain sexual gratification when (B) is present or can observe
(A) knows or believes that (B) is aware of the activity or intends that (B) should be aware
(A), aged 18 or over, intentionally causes a child under 16 (B) to watch another person engaging in an activity, or to look at an image of any person engaging in an activity
(A's) purpose is to obtain sexual gratification
In R v Abdullahi (Osmund) Mohammed CA (Crim Div) [2006] EWCA Crim 2060, the Court of Appeal considered the meaning of 'sexual gratification'. Dismissing the appeal the Court of Appeal held there was nothing in the language of s. 12 of the Act to suggest that sexual gratification must be taken immediately, or that it cannot extend to a longer term plan to obtain further or greater sexual gratification in the form of the eventual working out of a particular sexual fantasy or activity involving the child.
Consent is irrelevant.
There is a defence of reasonable belief that the child is 16 or over. This does not apply where the child is under 13.
No defence for lawfully married couples (foreign nationals) where one party is under 16.
There is a defence for aiding and abetting or counselling the commission of an offence under section 9 only where the conditions of section 73 apply (see above).
Under section 11, there is no requirement that (B) is actually aware of the activity, although there is a requirement that (B) is present or can observe. Observation can be via a web-cam. Observation includes an image (section 79).
The offences in sections 9 and 10 are indictable only with a maximum sentence of 14 years where penetration occurs within subsection (2) of those sections. In all other cases the offence is either way with a maximum sentence of 14 years on indictment.
Sections 9 and 10 create two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, prosecutors should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.
The offences in sections 11 and 12 are either way and carry a maximum sentence of 10 years on indictment.
The factors in assessing the seriousness of the offences in sections 9-12 will be:
the nature of the sexual activity;
the age and degree of vulnerability of the victim;
the age gap between the child and the offender;
any breach of trust in the relationship of the parties; and
any aggravating features, such as, covert use of drugs, use of force, exploitation etc.
In relation to this set of offences, R v Corran: R v Cutler: R v Heard: R v Williams [2005] EWCA Crim 192 provides that:
The factors applicable to determining sentence under section 5 (see above) are also applicable to offences under ss.9 and 10 save that where the defendant had a reasonable belief that a victim was 16, that belief operated as a defence and not just mitigation.
Sentences under ss.11 and 12 would usually be less than those under ss.5-10. However, the age and character of the child and the defendant were relevant as were the nature of the act, the number of incidents, the impact on the child, remorse and future risk.
As well as giving rise to offences under sections 9 and 10 the same set of circumstances may also support a prosecution for other offences requiring proof of lack of consent. Where this situation arises and it is clear that there is an absence of consent, and an absence of reasonable belief in consent, it would be appropriate to charge a non-consensual offence.
If, however, there are difficulties in proving the non-consensual offences, then an offence under section 9 may be appropriate (where the elements can be proved).
Offences under sections 25 and 26 (familial child sex offences) may also come within sections 9 and 10. Where there is clear evidence of the family relationship, prosecutors should charge the familial child sex offence.
Sections 9 and 10 apply where a child is under 13, which means that the activity may also be an offence under sections 5-8 (rape of a child under 13, assault of a child under 13 by penetration, sexual assault of a child under 13, and causing of inciting a child under 13 to engage in sexual activity). The reason for this is to cover the situation where the prosecution have difficulty in proving the age of the victim, so that there is no need to amend the charge or prefer an alternative charge. Therefore, if it can be proved that the child is under 13 then prosecutors should charge an offence, if appropriate, under sections 5-8. If there is difficulty in proving the victim is under 13, then a child sex offence should be charged. This approach is consistent with the intention of Parliament.
It is an offence if a person under 18 commits an offence if she/he does anything which would be an offence under sections 9 -12.
The penalty is reduced to:
Summary conviction - imprisonment not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
On indictment - imprisonment for a term not exceeding 5 years.
This section comes within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (Offenders under 18 convicted of certain serious offences: power to detain for specified period). Whether section 91 applies will depend on the nature of the sexual activity and if there are any aggravating features present, such as penetration in the presence of other children.
Code for Crown Prosecutors - Adult/child defendants
Guidance set out above in relation to sections 5-8 also applies to the child sex offences. The relevant factors that prosecutors should consider are repeated below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. However, in deciding whether it is in the public interest to prosecute a person, prosecutors may exercise more discretion in relation to child sex offences (where the victim is a child aged 13-15) than for offences against children under 13.
Prosecutors should have regard to the following factors:
The relevant ages of the parties, i.e. the same or no significant disparity in age;
Whether there is any element of exploitation, coercion, threat, deception, grooming or manipulation in the relationship;
What is in the best interests and welfare of the complainant; and
What is in the best interests and welfare of the defendant.
In summary, where a defendant, for example, is exploitative, or coercive, or much older than the victim, the balance may be in favour of prosecution, whereas if the sexual activity is truly of the victim's own free will the balance may not be in the public interest to prosecute.
In addition, it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption. In such cases, protection will normally be best achieved by providing education for the children and young people and providing them and their families with access to advisory and counselling services. This is the intention of Parliament.
The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.
A person must intentionally arrange or facilitate for himself or another something that he intends or believes would happen that would result in a commission of a child sex offence in any part of the world (sections 9-13).
There is a defence if the person arranges or facilitates something that although he believes might happen, he does not intend it to happen, and he acts for the protection of the child i.e. from sexually transmitted infection; physical safety; from becoming pregnant; or promoting the child's well-being by giving advice. For example, where a person provides a condom to a girl under 16 in order to protect her from sexually transmitted infections/pregnancy in circumstances where she says she is already having sexual intercourse.
However, the defence does not apply if the person acts for the purpose of causing or encouraging the activity constituting the child sex offence or the child's participation in it. For example, a person who gives a condom to a child under 16 to protect her from pregnancy whilst arranging for her to have sex with a friend. Similarly, the defence does not apply if the person acts for the purpose of obtaining sexual gratification.
Charging Considerations
If considering a charge under s14, in which no real child was involved, such as cases involving undercover officers or 'vigilante groups', prosecutors should charge the substantive offence and not an attempt.
Section 14(1) creates an offence which is a substantive inchoate offence. It is similar to, but broader than, an attempt. See R [2008] EWCA Crim 619. 'Arranging' and 'facilitating' are different considerations to 'more than merely preparatory'. As such, there will be circumstances which would constitute 'arranging' or 'facilitating', but fall short of an 'attempt'.
The focus of the offence is on the child sexual offence which the person intended to arrange or facilitate. The fact that an offence may have been impossible has no bearing on the intention possessed at the time it was arranged of facilitated.
The offence is committed if the person intentionally arranges or facilitates the commission of an offence under sections 9-13 SOA 2003. It is only necessary to prove the arrangement or facilitation together with the requisite mens rea to commit a section 9-13 SOA 2003 offence in the future. The proof of an arrangement or facilitation is not dependent on the possibility of carrying it out.
Prosecutors should also refer to legal guidance on internet vigilantes when considering potential charges contrary to this section.
The offence is either way and carries a maximum sentence of 14 years on indictment
This offence is intended to protect children from adults who communicate (not restricted to on-line communications) with them and then arrange to meet them with the intention of committing a sexual offence against them, either at that meeting or subsequently. The offence is committed when the offender meets the child or travels with the intention of meeting the child, or arranges to meet the child, or the child travels with the intention of meeting the offender.
The offence only applies to adults
There must be communication (a meeting or any other form of communication) on at least two previous occasions. It is not necessary for the communications to be of a sexual nature.
The communication can take place anywhere in the world.
The offender must either meet the child or travel to the pre-arranged meeting, or arrange to meet the child, or the child must travel to meet the offender
The meeting or at least part of the travel must take place within the jurisdiction.
The person must have an intention to commit any offence under Part 1 of the 2003 Act or any act done outside England and Wales, which would be an offence in the jurisdiction. This may be evident from the previous communications or other circumstances e.g. an offender travels in possession of ropes, condoms or lubricants etc.
The child is under 16 and the adult does not reasonably believe that the child is over 16. However, if this is not the case e.g. the child's place has been taken by an undercover police officer, an attempt could be charged.
The offence is either way and carries a maximum of 10 years' imprisonment on indictment.
The main factors in determining the degree of seriousness of this offence include:
The seriousness of the intended offence;
Vulnerability of the victim and any harm caused to the victim; and
The degree of planning involved.
So-called Internet Vigilantes
Prosecutors should be aware of the activities of so called 'Internet Vigilantes' who are members of the public using social media to uncover alleged paedophiles.
Activity by those outside law enforcement agencies to expose offences or potential offences being committed is not unusual and must be dealt with on a case by case basis.
The Regulation of Investigatory Powers Act 2000 (RIPA) is not intended to apply where members of the public volunteer information to the police in the exercise of their civil duties or in response to police contact/hotline numbers set up to receive anonymous information. Under section 26 of RIPA, a person has the status of a Covert Human Intelligence Source (CHIS) and therefore falls within the authorisation requirements of Part II of the Act if:
(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.
Whilst members of the public using social media to masquerade, for example, as 13 year olds would not on the face of it have CHIS status in accordance with RIPA, the longer such activity takes place, the greater the risk of such conduct coming within the remit of RIPA.
Individuals who voluntarily provide intelligence on a frequent basis (even though they are not specifically tasked by the police to do so) may fall within the definition of a CHIS where the frequency of the provision of information leads to the inference that they had in fact been tasked.
If the nature of the contact between the witnesses and the police became such that CHIS status attached, then authorisation under RIPA would be required. The absence of such authorisation would be significant in an application to exclude the evidence, albeit that it would not be determinative and the court would consider issues of overall fairness in deciding such applications.
There is also a risk that evidence obtained in this way could be excluded on the basis of entrapment or agent provocateur. However, each case would turn on its own facts, and if the suspect was only being afforded an "unexceptional opportunity" to commit a crime, then a stay of proceedings would be unlikely. See R v Loosely [2001] UKHL 53.
Where indecent images of a child are alleged, the Memorandum of Understanding between the CPS and the Association of Chief Police Officers (ACPO) concerning section 46 of the Sexual Offences Act 2003 makes it very clear that those engaged in so called vigilantism cannot avail themselves of the defence in section 1B of the Protection of Children Act 1978 against the offence of making an indecent image of a child.
The Memorandum states that "vigilantism is not merely unnecessary, it is unhelpful: anyone taking it upon themselves to seek out or investigate this kind of material where there is no legitimate duty to do so will be liable to prosecution".
These offences are primarily concerned with the child giving ostensible consent to the activity, but that consent is not relevant because of their particular relationship with the abuser.
Abuse of position of trust (Sections 16-24)
The primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives.
The prosecution has to prove that the relevant sexual act took place. The prohibited sexual behaviour in each of the sections 16-19 is identical to that prohibited in sections 9-12 (i.e. sexual activity with a child; causing a child to engage in sexual activity; sexual activity in the presence of a child; and causing a child to watch a sexual act).
The prosecution has to prove that (B) is under 18. If so, (A) is presumed not to have reasonably believed that (B) was over 18 unless (A) adduces evidence to raise an evidential burden. Once (A) satisfies the evidential burden, the prosecution is required to prove that (A) did not have any reasonable belief. The defence of reasonable belief does not apply where (B) is under 13.
The prosecution has to prove that (A) knew or could reasonably be expected to know that she/he was in a position of trust to (B). Positions of trust are defined in section 21 and 22 (e.g. looking after persons in educational establishments, residential settings, or where duties involve regular unsupervised contact of children in the community). However, where the position of trust arises in an institution where (A) looks after persons under 18 (section 21 (2)-(5)), it is presumed that (A) knows or could reasonably be expected to know that he was in a position of trust with (B), unless (A) adduces evidence to raise an evidential burden. If (A) does so, the burden shifts back to the prosecution to prove otherwise.
It is a defence against aiding, abetting or counselling an offence under section 16 where (B) is under 16 if the purpose is to:
has a defence if (A) and (B) are married (section 23)
(A) has a defence where she/he can prove that a sexual relationship pre-dated the relationship of trust with (B) only where the sexual relationship was lawful (section 24).
Each offence under sections 16 -19 is either way and carries a maximum sentence of 5 years on indictment.
These offences are primarily designed to protect 16 and 17 year olds from being persuaded to engage in sexual activity, which would not be criminal except for (A's) position of trust in relation to the victim.
Where lack of consent can be proved, sections 1-4 should be charged where the child is 16 or 17. Notwithstanding that the sections apply to under-16s where (B) is under 16, prosecutors should charge an offence(s) under the child sex offences (sections 9-12), or the under-13s offences (sections 5-8), if appropriate, where the penalties are significantly higher to reflect the fact that (B) is below the age of consent and that the sexual activity is, of itself unlawful. It may be appropriate to charge an abuse of trust offence where the victim is under 16 when it is likely that the person in a position of trust reasonably believed that the child was 16 or over, but it is less probable that she/he reasonably believed the child to be 18 or over.
These offences reflect the modern family unit and take account of 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 living together as partners. Sections 64 and 65 cover offences of sex with an adult relative (not covered in this guidance) and relate only to blood relatives.
For the purposes of sections 25 and 26 family relationships are defined in section 27 and fall within three categories:
First, those listed in subsection (2), such as parent, grandparent, brother, sister, step-parent, half-brother, half-sister, uncle, aunt, foster parent etc, will always be family members;
Second, those listed in subsection (3), such as partner of the other's parent or cousins, will only be family members if A lives, or has lived in the same household or is or has been involved in the caring, supervising or sole charge of the child.
The third category is similar to the second except that it applies only to those who are currently living in the same household e.g. an au pair who has responsibility for the child.
Where the offences involve penetration they are indictable only with a maximum sentence of 14 years. In any other case they are either way offence with a maximum sentence of 14 years on indictment.
Sections 25 and 26 create two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, you should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.
Where the offender is under 18 the offence (whether penetration occurred or not) is either way with a maximum penalty of 5 years on indictment (subsection (5) of each section). This offence comes within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (paragraph 43 of Schedule 6 of the 2003 Act).
In determining the seriousness of the offences relevant factors may include:
Age and degree of vulnerability of the victim;
The age gap between the victim and the offender; and
The breach of trust arising from the family relationship
The same degree of seriousness should apply to section 26 (incites) as to engaging in the activity.
Where a child is under 13, prosecutors should charge an under 13 offence, if appropriate, notwithstanding that sections 25 and 26 apply to a child under 13. If there is difficulty in proving age under 13, then these sections should be charged, so long as the other elements of the offence can be proved.
In some cases involving children between 13 and 15 offences may fall within the familial offences and also the equivalent offences where there are no family relationships, such as sections 9 and 10. In these circumstances, where there is sufficient evidence to prove the family relationship, prosecutors should charge a familial offence rather than a child sex offence. Where a child is 16 or 17 this will be the only charge available.
The factors mentioned in relation to the under 13 offences and the child sex offences also apply to these offences but prosecutors should bear in mind the specific breach of trust in these offences.
Sections 45 and 46 of the Act introduced amendments to the Protection of Children Act 1978.
See separate Legal Guidance on Indecent Images of Children.
Abuse of children through prostitution or pornography (sections 47-50)
Children involved in prostitution are primarily victims of abuse and people who take advantage of them by exploiting them, are child abusers. The use of children in the sex industry is entirely unjustifiable. Sections 47-50 provide offences specifically to tackle the use of children in the sex industry, where a child is under 18.
These offences are:
Section 47 - paying for sexual services of a child;
Section 48 - causing or inciting child prostitution or pornography;
Section 49 - controlling a child prostitute or a child involved in pornography;
Section 50 - arranging or facilitating child prostitution or pornography.
A person is a child if under 18
Consent is not in issue. It does not matter if a child of 16 or 17 consents to the activity, it is those who exploit children who commit a criminal act;
There is a defence that a person reasonably believed that the child was over 18. This does not apply if the child was under 13.
The definition of 'payment' is very wide.
A person is involved in pornography if an image of the child is recorded.
The offences are either way with a maximum sentence of 14 years on indictment if the child is under 16, except for offences involving penetration in section 47. In section 47 the offences are indictable only with a maximum sentence of 14 years and where the child is under 13, the offence is indictable only with a maximum sentence of life imprisonment. Where the child is aged 16 or 17 the offence is either way with a maximum of 7 years irrespective of whether or not penetration occurs.
Section 47 creates two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, you should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.
Where a child is under 13, prosecutors should charge an offence, if appropriate, under sections 5-8.
Where there are problems in proving that the defendant did not have a reasonable belief that the child was over 18, prosecutors may consider an offence under section 52 or section 53 (adult prostitution offences) provided the elements of the offence could be proved (e.g. the activity was done for an expectation of gain).
Although the legal age of consent for sexual activity is 16, Parliament considered that persons should be protected from sexual exploitation up until the age of 18. The intention behind these provisions is to provide maximum protection for children from those who exploit or seek to exploit them for the purposes of prostitution or pornography. A prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. These are very serious offences in which the public interest will normally require a prosecution.
The 2003 Act provides protection for persons with a mental disorder and abolishes the term 'mental defective'. There are three categories of offences for vulnerable persons. They are:
Offences against persons with a mental disorder impeding choice (sections 30-33);
Offences where there are inducements etc. to persons with a mental disorder (sections 34-37); and
Offences by care workers against persons with a mental disorder (sections 38-41)
The legislation draws a distinction between:
those persons who have a mental disorder impeding choice, persons whose mental functioning is so impaired at the time of the sexual activity that they are unable to make any decision about their involvement in that activity, i.e. they are 'unable to refuse',
those who have the capacity to consent to sexual activity but who have a mental disorder that makes them vulnerable to inducement, threat or deception; and
those who have the capacity to consent to sexual activity but who have a mental disorder and are in a position of dependency upon the carer.
In all these offences, mental disorder is defined as set out in section 1 of the Mental Health Act 1983, as amended by the Mental Health Act 2007, as 'any disorder or disability of the mind'. As well as including serious mental illness this definition ensures the protection of those with a lifelong learning disability and persons who develop dementia in later life.
Medical evidence will usually be required to prove that a person has a mental disorder.
Offences against persons with a mental disorder impeding choice (sections 30-33)
The sexual activity in section 30 (intentional sexual touching), section 31 (causing or inciting), section 32 (engaging in sexual activity in the presence of a person), and section 33 (causing a person to watch a sexual act) is the same activity as for the child sex offences (sections 9-12).
The victim is, regardless of age, unable to refuse because of or for a reason related to a mental disorder.
The offender knows or could reasonably be expected to know of the disorder and therefore the victim is likely to be unable to refuse.
The victim is unable to refuse if she/he lacks the capacity to choose to agree to the activity, e.g. lacks sufficient understanding of the nature of the activity, or she/he is unable to communicate such a choice to the offender (subsection (2) of sections 30-33).
In Hulme v DPP [2006] EWHC 1347 (Admin) the court dismissed an appeal against conviction in a case that involved a woman who, though physically able to speak was, due to having a mental age well below her chronological age of 27 years, unable effectively to communicate her choice in the way that other women, not suffering from such disabilities, would have done.
It is a defence against aiding, abetting or counselling an offence under s30 where (B) is under 16 if the purpose is to:
Promote the child's emotional well-being by the giving of advice unless the purpose is to obtain sexual gratification or to cause or encourage the relevant sexual act (s73).
Where the sexual activity in sections 30 and 31 involves penetration, the offence is indictable only with a maximum sentence of life imprisonment, otherwise it is either way with a maximum sentence of 14 years on indictment. Offences under sections 32 and 33 are either way with a maximum penalty of 10 years on indictment.
Sections 30 and 31 create two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, prosecutors should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.
In determining the seriousness of the offence, relevant factors may include:
the nature of the activity;
the relationship between the victim and the offender; and
the age and vulnerability of the victim.
A prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. Given the seriousness of these offences a prosecution will almost certainly be required in the public interest.
Offences where there are inducements etc. to persons with a mental disorder (Sections 34-37)
This category of offences is designed to protect persons with a mental disorder, whose mental impairment is not so severe that they are unable to refuse but who are vulnerable to inducement, threat or deception.
The structure of sections 34-37 according to the sexual activity involved is the same as for sections 30-33 and the offences against children (sections 9-12).
The victim purports to agree to the activity, but she/he has a mental disorder;
The defendant knows or could reasonably be expected to know that; and
The agreement to the activity is obtained by the defendant by means of an inducement, threat or deception.
The penalties under section 34-37 correspond with the same penalties under sections 30-33.
Code for Crown Prosecutors - considerations Refer to above.
The purpose of these offences relates to the protection of those who have the capacity to consent, but who, for reasons associated with their mental disorder, may agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon the carer.
Section 42 defines the relationship of care, e.g. if the victim is accommodated and cared for in a care, community, voluntary or children's home and the offender performs functions in the home in the course of employment which brings or is likely to bring him or her in face-to-face contact.
This applies to a National Health body or to a private agency;
It also applies to people in their own home;
There is no requirement for paid employment, volunteers can be caught under this provision.
The sexual activity in sections 38-41 mirrors the sections 30-33 offences.
The victim has to have a mental disorder and the defendant knows or could reasonably be expected to know that;
The defendant is in a relationship of care with the victim;
If the prosecution proves the victims mental condition, then the defendant is deemed to know of it, unless she/he adduces sufficient evidence to raise the issue that she/he reasonably did not.
The defences of marriage (section 43) and pre-existing sexual relationship (section 44) apply.
Sexual activity (section 38) and causing/inciting sexual activity (section 39) amounting to penetration is indictable only, which carries a maximum sentence of 14 years imprisonment. If the activity does not involve penetration it is either way with a maximum sentence of 10 years on indictment.
Activity within section 40 and 41 is either way with a maximum sentence of 7 years on indictment.
Sections 38 and 39 carry a high maximum penalty because it is designed as a 'catch all' offence. The prosecution is not required to prove (sections 38-41) that the victim has either 'an inability to refuse' or has been given an inducement, threat or deception. Where these elements cannot be proved or are difficult to prove and the defendant is in a position of care, these offences should be charged.
A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Given the seriousness of these offences a prosecution will normally be required.
Sexsomnia
See: Sleepwalking as a defence in Sexual Offence cases
The Sentencing Council has issued a definitive guideline on sexual offences which applies to offenders sentenced on or after 14 May 2007.
See Archbold Appendix K-83 for a quick reference guide. See Archbold Appendix K-420 to K-428 for authorities on the official guidelines.
For general provisions around sentencing see legal guidance on Sentencing - Overview.
Notification requirements Defendants - registered sex offenders
The notification requirements are set out in Part 2 of the Act. Their purpose is to provide a tool for the management of convicted sex offenders in the community. A person must comply with the notification requirements if she/he comes within section 80 of the Act (see Schedule 3 of the 2003 Act).
See Home Office Guidance on Part 2 of the Sexual Offences Act 2003.
Section 104 of the Act provides for the making of Sexual Offences Prevention Order (SOPO) designed to protect the public or any particular members of the public from serious sexual harm from the defendant.
Sexual Offences Act 1956 and Indecency with Children Act 1960 - Most commonly charged offences
The aim of this section is to assist prosecutors who are considering charging sexual offences that occurred prior to the Sexual Offences Act 2003, that is before 1 May 2004. It covers the offences that are most commonly charged under the Sexual Offences Act 1956. They are:
Rape - section 1;
Unlawful sexual intercourse by a man with a girl under 13 - section 5;
Indecent assault on a woman - section 14; and
Indecent assault on a man - section 15.
Archbold 2004 is essential for reference as it contains the relevant provisions. A copy is available from CPS HQ Library if required.
See section 1 Sexual Offences Act 1956 (Archbold 2004, 20-5)
The offence applies to the rape of a woman or the rape of another man.
Section 142 of the Criminal Justice & Public Order Act 1994 extended the definition of rape to include anal sexual intercourse with another man without consent. This conduct should be charged as rape contrary to section 1 of the Sexual Offences Act 1956 and not buggery contrary to section 12 of that Act.
Where the victim is a woman and the intercourse is vaginal and anal, prosecutors should prefer separate counts of rape and include the words 'per vaginam' or 'per anum' as appropriate in the indictment.
Where more than one man has raped the victim on the same occasion, all the defendants should be indicted in the same count with no reference to aiders and abettors.
(X) is raped by (A) whilst held down by (B). The indictment will allege that "(A) and (B) raped (X)". If the defendants then change places and (B) rapes (X) whilst being held down by (A), the particulars will allege "(A) and (B), on an occasion other than in Count 1, raped (X)".
Following R v R [1992] A.C. 599 and the removal of the word "unlawful" from the definition of rape it is clear that a husband may be prosecuted for raping his wife.
A boy under 14 is capable in law of sexual intercourse - Sexual Offences Act 1993, sections 1 and 2.
A woman may be convicted as an aider and abettor.
By a man with a girl under 13, see section 5 Sexual Offences Act 1956, (Archbold 2004 20-63 and Archbold 20-64).
By a man with a girl under 16, see section 6 Sexual Offences Act 1956, (Archbold 2004 20-74).
A charge of unlawful sexual intercourse will normally be appropriate if a girl consents to intercourse but she is under the statutory age in sections 5 of the Sexual Offences Act 1956.
The legislation provides protection for young girls. An underage girl cannot be prosecuted as an accessory to the offence committed by a male who has unlawful intercourse with her (R v Tyrrell 1894 1 Q.B. 710).
The public interest requires the prosecution of an offence of unlawful sexual intercourse with a girl under 13 unless exceptional circumstances exist.
The age of the defendant will be highly relevant. Even if the defendant is over 24, a prosecution may not be in the public interest if he had reasonable cause for believing that the girl was over 16.
The following factors will also be relevant:
the ages of the parties and any gap between them;
the emotional maturity of the girl and whether she entered into a sexual relationship willingly;
the relationship between the parties and whether there was an existence of a duty of care or breach of trust refer to Sexual Offences - Abuse of Trust, elsewhere in this guidance.
In summary, a man who is considerably older that the girl is likely to be prosecuted, especially if he owed her a duty of care; whereas it may not be necessary to prosecute a young man with whom the girl has been having a consensual relationship.
It is for the prosecution to prove that the girl was under the relevant age. A certified copy of the birth certificate accompanied with evidence of identity is one way of proving age, (Archbold 2004 20-73).
R v K [2001] 3 WLR 471 HL, which examined the offence of indecent assault, did not extend the defence of mistake as to age to the offence of unlawful sexual intercourse (Archbold 20-70).
A prosecution for an offence committed under section 6 (or an attempt to commit that offence) must be commenced within 12 months of the alleged offence. The House of Lords has ruled that a charge of indecent assault cannot be used to bypass the time limit. See R v J [2004] UKHL 42.
On a woman, see section 14 Sexual Offences Act 1956 (Archbold 2004, 20-144)
On a man, see section 15 Sexual Offences Act 1956 (Archbold 2004, 20-156)
If there is any doubt about the circumstances of indecency, a separate charge for common assault should also be alleged, refer to assault, below in this guidance.
Prosecutors should be aware that indecent assault cannot be used to bypass the 12 months time limit that applies to offences of unlawful sexual intercourse. See the decision of the House of Lords in R v J [2004] UKHL 42.
As a matter of law, a boy or girl under the age of 16 cannot consent to an act which would otherwise be an assault. However, if the victim did in fact consent, this would be relevant when considering the public interest in prosecuting.
Relevant factors include:
Age of the defendant in relation to the victim;
The emotional maturity of the victim and whether the sexual relationship was entered into willingly;
The relationship between the parties and the existence, or otherwise, of any duty of care or breach of trust;
Any element of seduction;
Whether the victim encouraged the defendant in any way.
Although not essential for an offence under section 14(1) (Archbold 2004, 20-145) age is usually averred as a matter of practice where the girl is under 16. However, because of the change in sentencing powers, consideration must always be given to specifying the age of the girl in older cases (Archbold 2004, 20-147). Section 2 of the Indecency with Children Act 1960 as amended section 37 and schedule 2(17) of the Sexual Offences Act 1956 increased the maximum sentence from 2 years to 5 years: "if on a girl under thirteen who is stated to have been so in the indictment".
In R v K [2001] 3 W.L.R. 471 HL, it was held that a defendant was entitled to be acquitted where the victim was under 16 if the defendant held an honest belief that the complainant was 16 or over. It was accepted that the belief did not have to be held on reasonable grounds. However, whilst the belief did not need to be reasonable provided it was honest and genuine, the reasonableness or unreasonableness of the belief was not irrelevant. The more unreasonable the belief, the less likely it was to be accepted as genuine, (Archbold 2004, 20-153).
The House of Lords also emphasised that nothing in the judgment had any bearing on a case in which the victim did not consent in fact. Section 14(2) provides that a girl under the age of 16 cannot in law give any consent. However, she may consent in fact. If it is shown that she did not consent, and that the defendant did not genuinely believe that she consented, any belief by the defendant concerning her age is irrelevant, since her age is relevant only to her capacity to consent.
Once the prosecution has proved that the victim was under 16, if the defence is raised that the defendant had a genuine belief that the complainant was 16 or older, the burden will be on the prosecution in the usual way to disprove that belief.
Although the offence before the House of Lords was indecent assault of a woman, the judgment applies equally to section 15 of the 1956 Act (indecent assault on a man).
The age is usually averred in the particulars of the indictment where a male victim is under 16.
Indecent conduct towards children under 16 that is not captured by the Sexual Offences Act 1956 is frequently covered by section 1 of the Indecency with Children Act 1960. For offences committed up until 11 January 2001 the acts of indecency had to be committed on a child under the age of 14.
Cases involving allegations of sexual offences commonly give rise to prosecutors having to choose between different charges and decide how many to proceed with.
A case involving sexual intercourse over a period of time may disclose sexual offences in addition to rape. Prosecutors should select specimen charges that accurately reflect the course of conduct over the period in question and allow the case to be presented clearly. In particular there need to be specific charges that describe the start and end of the conduct as well as specimen counts for the period in between. Prosecutors should select charges that reflect the seriousness of the offending and give the court adequate sentencing powers. Care should also be taken not to overload the indictment, especially where there are multiple victims.
See Drafting the Indictment, Sample counts elsewhere in the Legal Guidance
In cases concerning more than one victim, the rules of joinder in Rule 9 Indictment Rules 1971 should be carefully considered. Notwithstanding the court's power to sever under section 5(3) Indictments Act 1915 counts founded on the same facts or forming part of a series of offences of the same or similar character, will normally join in the same indictment. Prosecutors should not allow concern that a judge may order separate trials to deter them from applying the rules of joinder in cases where it is in the interests of justice to have all counts tried together.
Defence applications for separate trials should be contested, arguing the cases of (R v P 1991 2AC 447) and (R v Downey 1995 1 CR App R 547) on the basis of saving the victim from giving evidence on more than one occasion.
Alternative counts should be used sparingly and only where there is doubt concerning the issues. For example, if the evidence to support penetration is unclear, an alternative count of attempt would be appropriate.
When reviewing cases of rape and other sexual offences, prosecutors should consider the House of Lords judgment in R v Z [2000] 2 A.C. 483 in which the House of Lords allowed evidence to be adduced of an earlier acquittal, where it was probative of the offence being tried. The House held that provided a defendant was not placed in double jeopardy, evidence that was relevant on a subsequent prosecution was not inadmissible because it showed or tended to show that the defendant was, in fact, guilty of the offence of which he had been earlier acquitted, (Archbold 2004 4-160).
Although R v Z was a rape trial, the principal applies to any offence including non-sexual offences.
See Rape and Sexual Offences: Chapter 3.
Part 1 of the Sex Offenders Act 1997 applies subject to some exceptions
Section 1(2) of the Sexual Offences Act 1967 states that a homosexual act in private between consenting adult men is not an offence. Section 1(2) provides that an act is not done in private if, inter alia, more than two persons take part or are present. There are no provisions for the regulation of private homosexual acts between consenting adult women or for private acts between consenting heterosexual adults.
Section 1(2) was successfully challenged under Articles 8 and 14 in ADT v UK (2001) 31 E.H.R.R. 803. The acts, which took place at the home of one of the defendants, came to light when the police found video recordings on a search of the home. The charge related to the acts rather than the making of the videotapes.
The Court considered that the sole element which could give rise to doubt about whether the applicant's private life was involved was the video recording of the acts. The Court found it unlikely that the applicant, who had hidden his sexual orientation and had requested anonymity, would knowingly be involved in publication of the tapes.
Although ADT has not yet led to a change in our domestic legislation, cases must be reviewed carefully to ensure that prosecution is necessary and that there is an exemption under Article 8(2). Factors to consider include those that may bring the acts into the public arena such as the number of participants and the degree of organisation involved. Other factors to consider would include any vulnerability of the parties involved or whether there was any physical harm.
These provisions make it an offence to have sex with an adult relative either by committing, or consenting to, an act of sexual penetration.
The ways in which the parties may be related are set out in section 64(2) and include, for the first time, uncles and aunts (but not their spouses or partners).
Adoptive parents are also included since the amendment of section 64 by section 73 and Schedule 15, paragraph 5(3) of the Criminal Justice and Immigration Act 2008.
The maximum penalty on indictment is two years' imprisonment, a relatively low penalty, reflecting that the offences involve sexual activity between consenting adults.
The SOA 2003 is aimed particularly at protecting the vulnerable, especially children, and these offences should primarily be reserved for situations where a history of abuse against a child family member continues into adulthood or where a suspect sexually exploits an adult relative who is vulnerable. To this end it will be useful to consider the circumstances in which the relationship first arose and how long it has existed.
Where a history of exploitation and grooming can be shown, at least in the early stages of the relationship, a prosecution for historic offences of rape, sexual assault or similar may be appropriate in addition to any offence committed under sections 64 and 65.
The introduction of blood uncles and aunts into the list of proscribed relationships raises the possibility of a lawful relationship pre-dating the Act subsequently becoming unlawful. In the absence of any history of exploitation a prosecution in these circumstances is unlikely to be in the public interest.
When considering a case involving sex with an adult relative, prosecutors should bear in mind that all adult parties will commit an offence providing they either commit or consent to the act, regardless of whether or not they are the 'victim'. Prosecutors should always consider the position of the parties individually and identify any issues of exploitation and victimisation. Although both may have committed an offence, different factors may apply to each, especially in relation to the public interest.
A number of cases referred to CPS involve young women who, having grown up apart from their absent father, have felt the need to seek him out in adulthood. It is not uncommon in cases of this nature for suspects who are fathers to claim that the sexual relationship was instigated by their daughter and to suggest that it is they who have been seduced. Prosecutors should always question the credibility of such assertions and acknowledge, in reaching any decision, that the exploitation of a daughter for sexual purposes always involves a gross breach of trust.
Code for Crown Prosecutors considerations
Paragraph 4.12 of the Code for Crown Prosecutors lists a number of relevant questions which prosecutors should consider in order to identify common public interest factors that make a prosecution of one individual rather than the other more likely.
a) How serious is the offence committed?
b) What is the level of culpability of the suspect?
c) What are the circumstances of and harm caused to the victim?
f) Is prosecution a proportionate rsponse?
Consideration of these questions may identify relevant factors tending in favour of prosecuting one individual such as:
The victim of the offence was in a vulnerable situation and the suspect took advantage of this;
there was an element of corruption of the victim in the way the offence was committed;
there was a marked difference in the ages of the suspect and the victim and the suspect took advantage of this;
there was a marked difference in the levels of understanding of the suspect and the victim and the suspect took advantage of this; and
the suspect was in a position of authority or trust and he or she took advantage of this.
In the absence of public interest factors tending in favour of prosecution and where the relationship can be shown to have arisen between adults without coercion or exploitation, a prosecution is unlikely to be required.
Where the relationship has resulted in the birth of a child or children, very careful consideration should be given to whether the public interest requires a prosecution, bearing in mind any potential adverse impact that a prosecution might have on the child/ children. Similarly, where the family is subject to social services intervention, prosecutors should carefully consider whether a prosecution, over and above any civil proceedings and supervision, is required in the public interest.
Where the parties make it clear that the relationship has ended and will not resume in future, this is an additional factor which may suggest that the public interest does not require a prosecution. Conversely, cases in which the relationship continues beyond a decision to advise that no action be taken on public interest grounds will need very careful consideration. In the event of such circumstances being further investigated and referred for a charging decision, the fact that a previous decision has been made not to prosecute on public interest grounds will mean that a prosecution is more likely to be in the public interest on any subsequent occasion.
Section 1 of the Voyeurism (Offences) Act 2019 inserts two new offences into the Sexual Offences Act 2003, at section 67A. This criminalises certain acts of voyeurism, specifically the behaviour known as "upskirting". These offences are triable either way and carry a maximum 2-year prison sentence. Upskirting" is a colloquial term referring to the action of placing a camera or mobile phone beneath a person's skirt to take a voyeuristic photograph without their permission.
It is often performed in a public place such as on public transport or on an escalator, with crowds of people making it harder to spot people taking these photos. A large proportion of women are targeted in places such as nightclubs, restaurants and shops. Victims to such an incident can express emotional distress for a long time after it has happened
The Voyeurism (Offences) Act 2019 received Royal Assent on 12 February 2019 and the new offences will apply to England and Wales. They will come into effect on 12 April 2019 and will not be retrospective.
Prior to the creation of this new offence, depending upon the particular circumstances, certain behaviour could be prosecuted under existing law such as the common law offence of Outraging Public Decency, or the existing Voyeurism offences under section 67 of the Sexual Offences Act 2003.
However, this legislation doesn't cover all instances and as such some acts of upskirting could avoid prosecution. By creating a specific upskirting offence the government is strengthening the law in this area and ensuring that the most serious sexual offenders are made the subject of notification requirements.
These new offences will criminalise someone who operates equipment or records an image under another person's clothing (without that person's consent or a reasonable belief in their consent) with the intention of observing or looking at, or enabling another person to observe or look at, their genitals or buttocks (whether exposed or covered with underwear), or the underwear covering the genitals or buttocks, where the purpose is to obtain sexual gratification or to cause humiliation, distress or alarm.
Where the offence is committed for the purpose of obtaining sexual gratification, and relevant conditions are met, the offender will be made the subject of notification requirements -commonly referred to as being placed on the sex offenders register (see Paragraph 34A of Schedule 3 to Sexual Offences Act 2003).
Victims of the new offences will be entitled to automatic reporting restrictions with lifetime protection from being identified in the media, prohibiting publication of identifying details such as names, addresses, or photos (see Paragraph 31 of Schedule 6 to the Sexual Offences Act 2003)
Refer also to the Legal Guidance section Voyeurism (Offences) Act 2019 and http://www.legislation.gov.uk/ukpga/2019/2/enacted
Rape and Sexual Offences - Chapter 1: CPS Policy Statement
Rape and Sexual Offences - Chapter 3: ConsentGo to next page
The Code for Crown Prosecutors
The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.
This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.


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UPDATE: Additional victims found in sex assault of young teens
By: Joe Enea
PHOENIX — Additional underage victims have come forward after a man allegedly had sex with them in exchange for drugs, court documents show.
On December 16, Phoenix police arrested 53-year-old Gordon Keith Golding on six counts of sexual abuse, five counts of contributing to the delinquency of a minor, and seven counts of unlawful recording.
Golding was first arrested on August 26, 2019 for allegedly sexually assaulting and providing marijuana to two 13-year-old girls he met on Instagram.
Phoenix police received a call from a father saying Golding, an adjunct faculty member with Paradise Valley Community College's Fitness Center, sexually assaulted his daughter.
The father confronted his daughter about marijuana that was found in her room. She allegedly told him that Golding gave it to her and sexually assaulted her at his home.
Now investigators say they have found a total of six victims aging in range from 12–25, with most of the girls being 13.
Golding would allegedly trade marijuana wax pens, edible marijuana, and alcohol, for sex with the girls. Court records show that one victim described having her ankles and wrists bound during the incident.
In other incidents, the girls were blindfolded, court documents show.
Police say some of the incidents were reportedly recorded by Golding using a GoPro. Several videos confiscated clearly show Golding having sex with underage girls, police say.
One girl described a time when Golding allegedly placed a "Satanic Bible" on the stomach of another girl and bound her with "a red and black chain."
Court records show that Golding self-surrendered on December 16, accompanied by his attorney. He made no statements to investigators.
He is scheduled for a preliminary hearing on December 26.

redpajama_set_name: RedPajamaCommonCrawl


Alberta M. Sbragia has written on both American and European urban affairs. A Fulbright Scholar, she has been a visiting associate professor at the Harvard Business School, a visiting fellow at the Brookings Institution, and chair of the European Community Studies Association. She is professor of political science at the University of Pittsburgh and director of the Center for West European Studies.
Albert Sbragia considers American urban government as an investor whether for building infrastructure or supporting economic development. Over time, such investment has become disconnected from the normal political and administrative processes of local policymaking through the use of special public spending authorities like water and sewer commissions and port, turnpike, and public power authorities.
Sbragia explores how this entrepreneurial activity developed and how federal and state policies facilitated or limited it. She also analyzes the implications of cities creating innovative, special-purpose quasi-governments to circumvent and dilute state control over city finances, diluting their own authority in the process.


Nell M. Armstrong, Lowell, Mass.
This invention relates to the method of knitting a sock or stocking in a flat blank form and then joining the blank at the edges thereof to form a wearable article.
In the past socks or stockings have been knit from wool by hand with the use of four needles. The wool being retained on three of the needles while the knitting is accomplished by the fourth.
An object of the invention therefore is to provide a method whereby the knitter may with the use of only two needles make a sock or stocking that will in appearance be similar to a sock made by the use of four needles.
Figure 3 the completed sock.
In knitting the sock, using the method forming the invention only two needles (10) are used and these needles may be of any size desired for close, fine knitting or large open knitting.
The blank is started by knitting the cuff (12) first and this cuff may be knit 1, purl 2, knit 1, purl 1, or any combination of this type of stitches, depending upon the design of the sock to be knitted.
After the cuff (12) has been knitted for any desired width, the leg portion (14) is then knitted and this portion may be ribbed as shown or may be of any stitch desired. At the heel portions (16) a regular knit stitch is used and the gussets (18) are made by picking up the stitches and thus joining the gussets to the heel portions upon their completion.
The foot portion (20) is made by continuing the stitch used in the leg portion and the stitch used in the gussets until the toe portion (22) is made when the gusset stitch is used entirely for the completion thereof.
After the blank has been knitted, the blank is joined along the marginal edges (24) by a straight needle and wool to form the sock shown in Figure 3.
A sock made by this method requires only the use of two needles and when completed the sock cannot be distinguished readily from a sock made by the use of four needles.
It is believed that the method by which the sock is knit will be apparent to those skilled in the art of knitting and it is to be understood that changes in the manner of forming the stitches may be resorted to providing such change falls within the method of knitting with two needles as covered by the appended claim.
The method of flat knitting a sock blank by the use of only two needles comprising the integral knitting of the cuff, leg portion, heel portions, gussets, foot and toe portions, the knitting of the gussets including the picking up of stitches in the heel portions, and then joining the marginal edges of the blank to form the sock.


greenteQ stainless steel pull handles, for single-sided or pairwise use, on interior and exterior doors.
greenteQ pull handle TG 9.ER.GS; bar-shaped with milled dimples with straight stilts; diameter of handle bar 32 mm; diameter of stilts 27 mm; matt brushed and polished stainless steel surface with anti-fingerprint effect; preconfigured for fixing system BA 15 – included in scope of delivery.
Material Surface Length (**) Centre to centre (*) VBH Item-No.


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Where did you go? Last post was a year ago? I hope you're all right, sir.
Testing testing – is everything all right? No posts for over a year?


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Volume 13, Issue 20; May 15, 2013: Embolalia and Stuff Like That: I
Embolalia and Stuff Like That: I
When we address others, we sometimes use filler — so-called automatic speech or embolalia — without thinking. Examples are "uh," "um," and "er," but there are more complex forms, too. Embolalia are usually harmless, if mildly annoying to some. But sometimes they can be damaging.
Fugu Rubripes, the Fugu fish. The genome of the Fugu contains almost the same genes and other coding that the human genome contains, but it is far more compact — about one-eight the size. The Fugu's genome contains much less of the so-called "non-coding" DNA — DNA that does not encode protein sequences. This makes the genes easier to find, and it is therefore convenient for scientific study. Non-coding DNA has been called "junk DNA" because it was at first thought not to have a genetic purpose. That view is changing. In the human genome, some now conjecture that up to 80% of DNA does serve some biochemical purpose, though that number is controversial.
In human communication, many regard embolalia the way genomics scientists once regarded non-coding DNA — useless or worse. Certainly embolalia do not carry much of the central meaning of the communication. And just as certainly, extreme overuse of embolalia is useless or worse, relative to the communication's purpose. But embolalia do carry meaning of some kind. They sometimes serve social purposes — providing means of achieving or expressing social connections of many kinds, including accessibility, distance, superiority, or affection.
Photo courtesy Lawrence Berkeley Laboratory.
Embolalia are those utterances we produce that are little more than filler, if they are any more at all. Sometimes, when they do carry meaning, the function they serve is better accomplished in more straightforward and economical ways. At other times, they can damage the relationship between the addressor and the addressees, or worse, they can harm the very image of the addressor. What are embolalia, and why do we produce them?
In their simplest forms, embolalia are monosyllabic non-words. They fill spaces. They mark time while we gather our thoughts or while we plan what we're about to say. In English, examples are "uh," "um," "er," and "eh." Some people use embolalia habitually, even though they don't need time to plan their next words. "Like" is one example often used this way.
When we hear others using embolalia, we make meaning of their use. For the simplest forms, we sometimes conclude that the addressor is "unprofessional," or lacks confidence or polish, or that the addressor is nervous or under stress. This is one reason why those who aspire to be taken seriously often try mightily — sometimes too mightily — to rid their speech of these forms.
With regard to these simplest embolalia, conclusions about professionalism or polish can be correct, but there are other possibilities. For example, some users of "uh," "um," and "er" use them consciously, by choice, to convey an impression of softness, tact, or accessibility. They want to avoid appearing too certain of themselves, or too commanding or domineering. They want to seem to be considering their words carefully, as if for the first time, when they actually know very well what they're planning to say. People who employ this deceptive strategy might also use more complex embolalia, but using "uh," "um," and "er" in this way — and doing it effectively — requires true theatrical skill.
Some more complex Some users of "uh," "um," and "er"
use them consciously, by choice,
to convey an impression of
softness, tact, or accessibilityembolalia also provide opportunities for softening impressions. Examples: "you know," "You know what?," "kind of," "kinda," "sort of," "sorta," "it seems to me that," "it seems like," "the thing is," "I mean," "stuff like that," and "things like that." These forms, like all embolalia, do provide extra time for the addressor to plan ahead, but they can also be disarming or softening, or contribute to a more familiar or humble tone if the addressor seeks such a tone.
Sadly for some users of embolalia, familiarity or humility aren't always desirable results. Addressors who seek credibility, who want to persuade the addressees, or who want the respect of addressees, would do well to avoid these forms in particular.
We'll continue our exploration of embolalia next time, when we look at some of the most complex forms. Next in this series Top Next Issue
Is every other day a tense, anxious, angry misery as you watch people around you, who couldn't even think their way through a game of Jacks, win at workplace politics and steal the credit and glory for just about everyone's best work including yours? Read 303 Secrets of Workplace Politics , filled with tips and techniques for succeeding in workplace politics. More info
Under stress, we sometimes make choices that we later regret. And we wonder, "Will I ever learn?" Fortunately, the problem usually isn't a failure to learn. Changing just takes practice.
The True Costs of Indirectness
Indirect communications are veiled, ambiguous, excessively diplomatic, or conveyed to people other than the actual target. We often use indirectness to avoid confrontation or to avoid dealing with conflict. It can be an expensive practice.
When Stress Strikes
Most of what we know about person-to-person communication applies when levels of stress are low. But when stress is high, as it is in emergencies, we're more likely to make mistakes. Knowing those mistakes in advance can be helpful in avoiding them.
What have you learned today? What has enriched you, changed your understanding of the world, or given you a new view of history or the future? Learning something new every day is a worthy goal.
High Falutin' Goofy Talk: II
Speech and writing at work are sometimes little more than high falutin' goofy talk, filled with puff phrases of unknown meaning and pretentious, tired images. Here's Part II of a collection of phrases and images to avoid.
See also Personal, Team, and Organizational Effectiveness and Effective Communication at Work for more related articles.
Virtual Team or Virtual Catastrophe?
Learn how to make your virtual global team sing.


The New Year can leave you feeling a little 'hungover'. I don't just mean from new year drinking, although of course for some people that's the case. I mean in general from a busy December and life in general.
We often have lots of plans for the New Year. Some people want to make changes, some have resolutions and some go for that new year, new start type approach to life. Social media is a-wash with people pledging all sorts to themselves and the world.
Easier said than done when the madness of December has left you feeling a little run down and shell-shocked, or just buried in 'stuff'.
The lead up to Christmas is one of the most magical times of the year, but it can also be one of the most tiring. After all of the Christmas shopping, wrapping the presents, putting up the decorations, preparing and eating the festive feasts and several Christmas parties, there's no doubt that you'll be feeling exhausted come Christmas day! So, at this time of year it's important to protect your immune system and ensure you're receiving the right nutrients to ward off any winter ailments.
Fortunately there are a few tricks you can use to help you on your way.
A specially tailored formula containing high dose vitamin B complex, plus other essential nutrients, which are scientifically proven to help support energy release and enhance mental performance – Berocca is one of those January essential items I think.
It does two things, and comes in one tube, all you have to do is add water. I love the blackcurrant, it makes a tasty drink and if you pop it in a large glass it's also a great way of getting a decent amount of fluid into you as well.
A potent complex of elderberry, sage and beta glucans with vitamin C, vitamin D and zinc which support a healthy immune system, in a convenient and pleasant tasting powder that can be mixed with liquids for flexibility. 7 sachets for £16.45 (£2.35 per day) from BioCare.co.uk and Independent Food Stores.
Combined with fresh air and exercise and as much sleep as is possible with a family to organise, you should be able to re-boot in time for the end of the month. February is the new January anyway right?
How do you feel in January? All fired up and ready to attack the year, or in need of a break from the 'break'?


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Proportional Representation in Action
The Electoral Reform Society operates on a simple premise - that politics can be better than it is. We campaign for a better democracy.
The Electoral Reform Society is the UK's leading voice for democratic reform. We work with everyone – from political parties, civil society groups and academics to our own members and supporters and the wider public – to campaign for a better democracy in the UK.
Our vision is of a democracy fit for the 21st century, where every voice is heard, every vote is valued equally, and every citizen is empowered to take part. We make the case for lasting political reforms, we seek to embed democracy into the heart of public debate, and we foster the democratic spaces which encourage active citizenship.


Iceland is a beautiful country filled with beautiful life and sadly one of those lifeforms is threatened: the Icelandic goat. The goats have been on HBO's Game of Thrones and now they all may die out if a goat farming operation can't be saved.
You can be a part of the goat-saving operation through a new Indiegogo campaign!
You can help rescue the goats from Game of Thrones by donating to the campaign to save farmer Johanna Thorvaldsdóttir's goat farm.
Time is of the essence. If the funds are not raised within the next month to save Johanna's farm, this unique species, introduced to Iceland by the Vikings a thousand years ago, will disappear from the earth forever.