S11 and 13. Engaging in sexual activity in presence of child - youth
Date Updated: January 2012
Title: Sexual offences
Offence: Engaging in sexual activity in the presence of a child (Youth only)
Legislation: Sexual Offences Act 2003 S11 & S13
Commencement Date: 01/05/2004
Mode of Trial: Grave Crime (Section 139 & Para. 43 Schedule 6 Sexual Offences Act 2003)
Statutory Limitations & Maximum Penalty: On Indictment -5 years imprisonment
Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability & Harm
The sentences for public protection must be considered in all cases of engaging in sexual activity in the presence of another person. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.
These offences involve intentionally, and for the purpose of obtaining sexual gratification, engaging in sexual activity in the presence of a person under 16, or a person with a mental disorder, knowing or believing that person to be aware of the activity.
The guidelines are predicated on the principle that the more serious the nature of the sexual activity a victim is forced to witness, the higher the sentencing starting point should be.
These offences will potentially be serious enough to merit a custodial sentence. In an individual case the court will need to consider whether there are particular mitigating factors that move the sentence below the custodial threshold.
Aggravating & Mitigating Factors
Aggravating
- Background of intimidation or coercion
- Use of drugs, alcohol or other substance to facilitate the offence
- Threats to prevent victim reporting the incident
- Abduction or detention
Mitigating
- Youth and immaturity of offender
Relevant Sentencing Guidelines (If Any)
- Guidelines effective for offences sentenced on or after the 14th May 2007.
- The starting points are for an offender of previous good character who was convicted after trial.
" Sections 11... will usually attract a lesser sentence than that appropriate for sexual activity with a child, in contravention of sections 5, 7, 8, 9 or 10." per Rose LJ R v Corran and others [2005] 2 Cr.App.R.(S) 73
The principal aim for all involved in the youth justice system is to prevent offending by children and young persons.
A court imposing sentence on a youth must have regard to the welfare, 4 maturity, sexual development and intelligence of the youth. These are always important factors.
Where a young offender pleads guilty to one of these offences and it is the first offence of which they are convicted, a youth court may impose an absolute discharge, a mental health disposal, a custodial sentence, or make a referral order.
The starting points below are based upon a first-time offender aged 17 years old who pleaded not guilty. For younger offenders, sentencers should consider whether a lower starting point is justified in recognition of the offender's age or immaturity.
Type/nature of activity: Sexual activity involving penetration where one or more aggravating factors exist
Starting points: Detention and Training Order 12 months
Sentencing ranges: Detention and Training Order 6 - 24 months
Type/nature of activity: Any form of sexual activity (non-penetrative or penetrative) not involving any aggravating factors
Starting points: Community order
Sentencing ranges: An appropriate non-custodial sentence
'Non-custodial sentence' in this context suggests a youth community order (as defined in the Criminal Justice Act 2003, section 147(2)) or a fine. In most instances, an offence will have crossed the threshold for a community order. However, in accordance with normal sentencing practice, a court is not precluded from imposing a financial penalty where that is determined to be the appropriate sentence.
Relevant Sentencing Case Law
R v Corran and others [2005] 2 Cr.App.R.(S) 73
Ancillary Orders:
- Notification (S83 to 96 Sexual Offences Act 2003)
- Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
Consider Also:
- Dangerous Offender provisions apply. Sentences for public protection must be considered.
