Advanced Search

PDF Information

In order to open PDF documents you need to have Adobe Reader installed on your computer. The majority of computers have this software but if not you can download Adobe Reader free of charge.

Get Adobe Reader

Rape and Sexual Offences:
Chapter 2: Sexual Offences Act 2003 - Principal Offences, and
Sexual Offences Act 1956 - Most commonly charged offences

Contents:

Sexual Offences Act 2003 - Principal Offences

Introduction

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 The Act repealed almost all of the previous statute law in relation to sexual offences.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:

Top of page

Selecting Charges

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.

Terminology

Sexual

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).

Key points
  • 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.

General Interpretation

Section 79 defines terms for the purposes of the Act.

Intent

The offences in the Sexual Offences Act 2003 are crimes of basic intent - R v Lee Heard (CA) (2006)

Top of page

Non-Consensual Offences

Sections 1-4 deal with offences where the defendant (A) engages in sexual activity with the complainant, without the complainant's (B's) consent.

Rape (section 1)

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.

Penalty

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 defendants, 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.

Assault by penetration (section 2)

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
    • (B) does not consent to the penetration, and 
    • (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.

Key points
  • There has to be penetration of the vagina or anus but not the mouth.
  • Penetration is of 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.
Penalty

The offence is indictable only with maximum penalty of life imprisonment.

Code for Crown Prosecutors - considerations

This offence is in essence similar to rape and a prosecution is almost certainly required in the public interest.

Top of page

Sexual Assault (section 3)

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 
  •  (A) does not reasonably believe that (B) consents.
Key points
  • 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.
Penalty

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).

Charging practice
  • 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.

Top of page

Causing sexual activity without consent (section 4)

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
  • (A) does not reasonably believe that (B) consents.

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.
Key points
  • 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.
Penalty

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 Bs 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.

Charging practice

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.

Offences Against Children

The 2003 Act identifies three categories of offences against children of different age. They are:

  • Offences against those under 13;
  • Offences against those under 16;
  • Offences against those under 18.

Top of page

Offences against children under 13 (sections 5 - 8)

Introduction
  • 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: Rape of a child under 13
  • 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

Top of page

Section 6: Assault of a child under 13 by penetration
  • 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: Sexual assault of a child under 13
  • Section 7 makes it an offence for a person to touch a child under 13 sexually.
Section 8: Causing or inciting a child under 13 to engage in sexual activity
  • 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.
Key points
  • 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.
Penalties

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.

Code for Crown Prosecutors - considerations

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.

In addition:

  • 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.

Factors: whether or not to prosecute young defendants

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.

Top of page

Offences against children under 16 (sections 9 - 13)

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.

Section 9: Sexual activity with a child

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.
Section 10: Causing or inciting a child to engage in sexual activity

The elements of the offence are:

  • (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 
  • (B) is under 13.
Section 11: Engaging in sexual activity in the presence of a child

The elements of the offence are:

  • 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
  • Either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
  • (B) is under 13.

Top of page

Section 12: Causing a child to watch a sexual act

The elements of the offence are:

  • (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
  • the activity 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.

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.

Key points
  • 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).
Penalties

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.
Charging practice

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.

Top of page

Section 13: Child sex offences committed by children or young persons

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 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 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 or manipulation in the relationship;
  • The nature of the activity e.g. penetrative or non-penetrative activity;
  • 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.

Top of page

Other related offences against children (under 16)

Arranging and facilitating a child sex offence (section 14)

The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.

Key points
  • 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.
Penalty

The offence is either way and carries a maximum sentence of 14 years on indictment

Meeting a child following sexual grooming (section 15, as amended)

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.

Key points
  • 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.
Penalty

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".

Top of page

Offences against children under 18

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.

Key points
  • 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:
    • 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).
  • 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).
Penalties

Each offence under sections 16 -19 is either way and carries a maximum sentence of 5 years on indictment.

Charging practice

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.

Top of page

Familial child sex offences

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.
Penalties

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:

  • The nature of the sexual activity;
  • 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.
Charging practice

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.

Code for Crown Prosecutors - considerations

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.

Top of page

Indecent photographs of children (sections 45 and 46)

Sections 45 and 46 of the Act introduced amendments to the Protection of Children Act 1978.

See separate Legal Guidance on Indecent Photographs 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.
Key points
  • 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.
Penalties

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.

Charging practice

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).

Code for Crown Prosecutors - considerations

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.

Top of page

Offences against persons with a mental disorder

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:

  1. Offences against persons with a mental disorder impeding choice (sections 30-33);
  2. Offences where there are inducements etc. to persons with a mental disorder (sections 34-37); and
  3. 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)

Key points

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:
    • 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 (s73).
Penalties

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.
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. Given the seriousness of these offences a prosecution will almost certainly be required in the public interest.

Top of page

Offences where there are inducements etc. to persons with a mental disorder (Sections 34-37)

Key points
  • 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.
  • It is a defence against aiding, abetting or counselling an offence under section 34 where (B) is under 16 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).
Penalties

The penalties under section 34-37 correspond with the same penalties under sections 30-33.

Sections 34 and 35 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.

Code for Crown Prosecutors - considerations Refer to above.

Top of page

Offences by care workers against persons with a mental disorder (sections 38-41)

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.

Key points
  • 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.
  • It is a defence against aiding, abetting or counselling an offence under section 38 where (B) is under 16 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).
  • The defences of marriage (section 43) and pre-existing sexual relationship (section 44) apply.
Penalties

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.

Sections 38 and 39 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.

Activity within section 40 and 41 is either way with a maximum sentence of 7 years on indictment.

Charging practice

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.

Code for Crown Prosecutors - considerations

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.

Top of page

Sexsomnia

See: Sleepwalking as a defence in Sexual Offence cases

Top of page

Sentencing

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.

Ancillary Orders

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

Introduction

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;
  • Buggery - section 12;
  • Gross indecency - section 13;
  • 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.

Top of page

Rape

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.

For example:

(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.

Unlawful Sexual Intercourse

  • 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.

Top of page

Buggery and gross indecency

For buggery, see section 12 Sexual Offences Act 1956 (Archbold 2004, 20-121).
For gross indecency, see section 13 Sexual Offences Act 1956 (Archbold 2004, 20-133).

Where non-consensual anal intercourse is alleged to have taken place and anal rape rather than buggery is to be charged, this will also apply where the parties are married. Consent to vaginal intercourse does not imply consent to anal intercourse. Where anal intercourse takes place without consent and the evidential criteria satisfied, a prosecution for rape will normally follow.

The minimum age of consent to buggery and to certain homosexual acts was reduced from 18 to 16 in England and Wales on 8 January 2001 as a result of the Sexual Offences (Amendment) Act 2000 which amended the Sexual Offences Acts of 1956 and 1967.

Acts which occurred before 8 January 2001 are still capable of prosecution. However, unless the circumstances are exceptional it is unlikely to be in the public interest. Prosecutors considering a prosecution of 16 or 17 year olds, and satisfied it is in the public interest, must refer the case for consideration through their CCP or DCP to Central Casework Division.

No offence is committed by a person under 16 where he or she engages in buggery or certain homosexual acts with a person 16 or older (section 12 (1AA) Sexual Offences Act 1956). This does not affect the liability of a person aged 16 or over who engages in such conduct with a person under the age of consent. Furthermore, both parties remain liable if they are both under 16.

The consent of the DPP is required for proceedings against any male for offences of buggery or gross indecency with another male; or for aiding, abetting, counselling, procuring or commanding those offences where either male was under the age of consent. For offences which took place before 8 January 2001 (the commencement date of the Sexual Offences (Amendment) Act 2000), consent of the Director is still required where either man was under 21. Section 1 (2) (b) of the Sexual Offences (Amendment) Act 2000 has amended section 8 of the Sexual Offences Act 1967 so that consent is now required where either man was under 16 at the time of the offence rather than under 21.

For guidance on time limits see (Archbold 2004, 20-126).

The different penalty provisions applicable to buggery and gross indecency create distinct offences which should be identified in the particulars of the indictment (Archbold 2004, 20-123 and Archbold 2004, 20-137).

Where allegations of gross indecency are made against two or more men, it is often preferable to charge each in a separate count.

Section 13 of the Sexual Offences Act 1956 also includes procuring the commission of an act of gross indecency (Archbold 2004, 20-139). This may be more appropriate than one of indecent assault where the evidence of threat or hostile act towards another male is unclear.

It will usually be in the public interest to prosecute where the conduct consists of the mischief that the law is aimed at preventing. Where the offending factor is that the conduct took place in public, the principal mischief is the shock, distaste or outrage that might be experienced by members of the public witnessing the conduct; or any potentially corrupting effect on a spectator. Where age is the relevant factor, the mischief is the seduction or corruption of the young.

The relationship between the parties is a relevant consideration. A stable relationship may indicate the absence of exploitation by one party of the other, a factor which could tend against prosecution. On the other hand, there is a greater likelihood of repetition, which would be a factor tending in favour of prosecution.

The following factors should be considered when deciding whether the public interest requires a prosecution:

  • the age of the parties and any gap between them;
  • any element of seduction or corruption;
  • any breach of trust;
  • any exploitation of position or influence;
  • whether the offence represents a phase of adolescent sexual exploration;
  • the likely sentence.

Top of page

Indecent assault

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.

Indecency with Children Act 1960

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.

Specimen charges

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

Top of page

Joinder

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 charges

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.

Evidence of previous acquittals

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.

Top of page

Consent

See Rape and Sexual Offences: Chapter 3.

Registration/Notification of Sex Offenders

Part 1 of the Sex Offenders Act 1997 applies subject to some exceptions

Right to Privacy

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.

Top of page  

Sex with an adult relative (sections 64 and 65 Sexual Offences Act 2003)

Key points 
  • 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.
Charging practice

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.

They are:

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.

Top of page