S25. Sexual activity with a child family member (YOUTH only)

Date Updated: January 2012
Title: Sexual Offences
Offence: Sexual activity with a child family member (YOUTH only)
Legislation: Sexual Offences Act 2003 - S25
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 provisions relating to the sentencing of dangerous offenders apply to young offenders with some variation and, where appropriate, cases should be sent for trial or committed for sentence in the Crown Court. The offences in this section are 'serious' offences for the purposes of the provisions. Where the significant harm criterion is met, the court is required2 to impose one of the sentences for public protection, which in the case of those under 18 are discretionary detention for life, indeterminate detention for public protection or an extended sentence.

The following guidelines are for those offences where the court considers that the facts found by the court justify the involvement of the criminal law - these findings may be different from those on which the decision to prosecute was made.

The sentencing framework that applies to young offenders is different from that for adult offenders. The significant factors are set out below.

For each offence, the circumstances that would suggest that a custodial sentence should be passed where it is available to the court and those that would suggest that a case should be dealt with in the Crown Court (as 'grave crimes') are set out. As for adult offenders, these guidelines relate to sentencing on conviction for a first-time offender after a plea of not guilty.

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.

Except where the dangerous offender provisions apply:

• Where the young offender is aged 12, 13 or 14, a custodial sentence may only be imposed if the youth is a 'persistent offender' or has committed a 'grave crime' warranting detention for a period in excess of 2 years.5
• Where a young offender is aged 10 or 11, no custodial sentence is available in the youth court.
• Where a custodial sentence is imposed in the youth court, it must be a Detention and Training Order (DTO), which can only be for 4/6/8/10/12/18 or 24 months.
• Where a custodial sentence is imposed in the Crown Court, it may be a DTO or it may be detention for a period up to the maximum for the offence.

Aggravating & Mitigating Factors

Aggravating:

• Background of intimidation or coercion
• Use of drugs, alcohol or other substance to facilitate the offence
• Threats deterring the victim from reporting 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
• Youth and immaturity of offender

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 offender of previous good character who was convicted after trial.

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: Offence involving penetration where one or more aggravating factors exist or where there is a substantial age gap between the parties 

Starting points: Detention and Training Order 18 months
Sentencing ranges: Detention and Training Order 6 - 24 months

Type/ nature of activity: Any form of sexual activity that does not involve 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 SG [2010] EWCA 1250 D 17 no previous convictions convicted of sexual activity with child family member and attempting the same. D was on leave from army victim was his 13 year old sister. D put her hand on his erect penis, then put his penis in her mouth and subsequently tried to insert his penis into her vagina. She had felt close to him but was now too scared to be alone with boys. There was a delay of 12-14 months before trial. D had been discharged from the army and could not visit the family home owing to V's presence. HELD: No aggravating features as he had served 3 months, 12 months supervision not 12 months detention.

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.

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