S11. Engaging in sexual activity in presence of child
Date Updated: January 2012
Title: Sexual offences
Offence: Engaging in sexual activity in the presence of a child (Adult only)
Legislation: Sexual Offences Act 2003 S11
Commencement Date: 01/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: On Indictment -10 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
Relevant Sentencing Council Guideline (if any)
Guidelines effective for offences sentenced on or after the 14th May 2007.- The starting points are for an adult 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
Type/nature of activity: Consensual intercourse or other forms of consensual penetration
- Starting points: 2 years custody
Sentencing ranges: 1 - 4 years custody
Type/nature of activity: Masturbation (of oneself or another person)
- Starting points: 18 months custody
Sentencing ranges: 12 months - 2 years 6 months custody
Type/nature of activity: Consensual sexual touching involving naked genitalia
- Starting points: 12 months custody
Sentencing ranges: 26 weeks - 18 months custody
Type/nature of activity: Consensual sexual touching of naked body parts but not involving naked genitalia
- Starting points: 26 weeks custody
Sentencing ranges: 4 weeks - 18 months custody
Relevant Sentencing Case Law
R v Corran and others [2005] 2 Cr.App.R.(S) 73
R v Abbondandolo [2007] EWCA Crim 2924 - D 34 years old previous good character. Made contact with a boy aged 13 and girl 12 in a chat room, initially posing as a 14 year old boy, although he later claimed to be 28. After the first conversation he attempted to ring the girl but spoke to her mother who called him a paedophile. A few days later he made contact again,unaware the mother was in the room. Believing her to be the 12 year old he asked her a number of sexual questions questions and then exposed himself on the webcam and began to masturbate himself. On arrest he was also found to have 48 indecent images, 44 of which were at level one. Full admissions made, evidence of remorse and victim empathy. D had also attempted to commit suicide. HELD: In view of the age of the children in the section 11 offences, the activities involved and their pedatory nature 12 months for each concurrent was justified with 3 month consecutive for the images.
R v Brown [2010] EWCA Crim 1203 - Where D masturbated on a webcam believing he was talking to a child when in fact it was a police officer the fact an offence was an attempt makes little difference to sentence. 15 months upheld.
R v M (K) 2009 EWCA Crim 1543 - D aged 48 previous god character befriended children allowing them to his home to watch pornographic videos and masturbated in their presence. Held 3 years was appropriate.
R v Pedley Re M [2009] EWCA Crim 840 - D 41 no relevant convictions kept diaries full of fantsaies about young girls. Evantuall began following them masturbating the girls were unaware of his conduct. On two ocassions he approached girls, one aged 8 and the others 14 offering them money to be photographed. There was evidence he had a narcisstic and antisocial personality disorder with delusions of grandeur and supervision would be difficult. HELD: It was impossible to say there was an IPP significant risk. 3 years with a Sexual Offences Prevention Order was appropriate.
Ancillary Orders:
- Notification (S83 to 96 Sexual Offences Act 2003)
- Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
- Where the defendant is aged 18 or over he or she is automatically barred from engaging in regulated activity with children and with vulnerable adults. (Safeguarding Vulnerable Groups Act 2006).
Consider Also:
- Dangerous Offender provisions apply. Sentences for public protection must be considered.
