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S16 Abuse of a  position of trust: Sexual activity with a child

Date Updated: January 2012
Title: Sexual Offences
Offence: Abuse of a position of trust: Sexual activity with a child
Legislation: Sexual Offences Act 2003 - S16
Commencement date: 1/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:

  • On Indictment - 5 years imprisonment
  • Summary Conviction - 6 months imprisonment and/or statutory maximum fine

Culpability and Harm

The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.

The culpability of the offender will be the primary indicator of offence seriousness, and the nature of the sexual activity will provide a guide as to the seriousness of the harm caused to the victim. Other factors will include:

  • the age and degree of vulnerability of the victim - as a general indication, the younger the child, the more vulnerable he or she is likely to be, although older children may also suffer serious and long-term psychological damage as a result of sexual abuse;
  • the age gap between the child and the offender; and
  • the youth and immaturity of the offender.

These offences will only be charged where the victim is aged 16 or 17. Therefore, the sentencing starting points in the guidelines are only intended for those cases and are significantly lower than those for a child sex offence involving the same type of sexual activity, which should be applied in all other cases.

When sentencing for an abuse of trust offence, evidence of serious coercion, threats or trauma are aggravating factors that should move a sentence well beyond the starting point.

Some relationships caught within the scope of these offences, although unlawful, will be wholly consensual. The length of time over which a relationship has been sustained and the proximity in age between the parties could point to a relationship born out of genuine affection. Each case must be considered carefully on its own facts.

The same starting points apply whether the activity was caused or incited. Where an offence was incited but did not take place as a result of the voluntary intervention of the offender, that is likely to reduce the severity of the sentence imposed.

Aggravating & Mitigating Factors

Aggravating:

  • Background of intimidation or coercion
  • Offender ejaculated or caused the victim to ejaculate
  • Use of drugs, alcohol or other substance to facilitate the offence
  • Offender aware that he or she is suffering from a sexually transmitted infection

Mitigating:

  • Small disparity in age between victim and offender
  • Relationship of genuine affection
  • No element of corruption

Relevant Sentencing Council Guideline (if any)

  1. Guidelines effective for offences sentenced on or after the 14th May 2007.
  2. The starting points are for an adult offender, of previous good character who was convicted after trial.

The starting points shown below are intended to be used only in relation to victims aged 16 or 17. Where the victim is a child under 16, one of the child sex offences in sections 9 to 13 should normally be charged. If one of the abuse of trust offences has nevertheless been charged, the starting points should be the same as they would be for the relevant child sex offence.

Type/nature of activity: Penile penetration of the vagina, anus or mouth or penetration of the vagina or anus with another body part or an object  

Starting points: 18 months custody  
Sentencing ranges: 12 months - 2 years 6 months custody

Type/nature of activity: Other forms of non-penetrative activity  

Starting points: 26 weeks custody  
Sentencing ranges: 4 weeks - 18 months custody

Type/nature of activity: Contact between part of offender's body (other than the genitalia) with part of the victim's body (other than the genitalia)  

Starting points: Community order  
Sentencing ranges: An appropriate non-custodial sentence

'Non-custodial sentence' in this context suggests a community order 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 Wilson [2007] EWCA 2762 D 31 of previous good character formed a relationship with a 17 year old pupil at a college where he was a student teacher. Some months into it the defendant realised it was illegal and the following month V ended it. It was accepted he did not groom or corrupt the victim who was already sexually experienced. It was accepted he would not work in teaching again. Unbeknown to the Judge he had formed a relationship with a mature woman who was expecting their child.  HELD: The guidelines are not rigid. A Judge must do justice to a particular offender and a particular case. Given these factors the court took what they described as a merciful course 6 months instead of 10.

R v Healy [2009] EWCA 2196 D 27 no previous convictions employed as a cover supervisor at a school. Pleaded guilty to three counts of sexual activity with one child, six with a second child and inciting that second child to engage in sexual activity with a person with a position of trust. Defendant formed relationship with first girl and hen it ended formed a relationship with second. Judge noted it lasted 7 - 8 months and involved a very grave breach of trust.  HELD: sentences should be consecutive, the offence with the second girl was an aggravating feature but totality had to be taken into account. Taking into account that and pleas 4 years not 7.

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.

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