S26. Inciting a child family member to engage in sexual activity (Adult Defendant only)
Date Updated: January 2012
Title: Sexual Offences
Offence: Inciting a child family member to engage in sexual activity (Adult Defendant only)
Legislation: Sexual Offences Act 2003 - S26
Commencement date: 1/05/2004
Mode of Trial: Indictable only if penetration involved and defendant is aged 18 years or over, either way in other cases
Statutory Limitations & Maximum Penalty:
- If penetration involved and the defendant is aged 18 years or older 14 years on indictment;
In other cases
- On Indictment - 14 years imprisonment if defendant is aged 18 or over.
- Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability and Harm
The new 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.
The starting points for sentencing for the familial child sex offences should be between 25% and 50% higher than those for the generic child sex offences in all cases where the victim is aged 13 or over but under 16; the closer the familial relationship, using the statutory definitions as a guide, the higher the increase that should be applied.
Where a victim is over the age of consent, the starting points assume that the offender is a close relative.
Where the victim of a familial child sex offence is aged 16 or 17 when the sexual activity is commenced and the sexual relationship is unlawful only because it takes place within a familial setting, the starting points for sentencing should be in line with those for the generic abuse of trust offences.
Evidence that a victim has been 'groomed' by the offender to agree to take part in sexual activity will aggravate the seriousness of 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
- Closeness of familial relationship
Mitigating:
- Small disparity in age between victim and offender.
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.
For use in cases where:
- the victim is 13 or over but under 16, regardless of the familial relationship with the offender;
- the victim is 16 or 17 but the sexual relationship commenced when the victim was under 16;
- or the victim is aged 16 or 17 and the offender is a blood relative.
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: 5 years custody
Sentencing ranges: 4 - 8 years custody
Type/nature of activity: Contact between naked genitalia of offender and naked genitalia of victim
Starting points: 4 years custody
Sentencing ranges: 3 - 7 years custody
Type/nature of activity: Contact between naked genitalia of offender or victim and clothed genitalia of the victim or offender Contact between naked genitalia of victim by another part of the offender's body or an object, or between the naked genitalia of offender and another part of victim's body
Starting points: 18 months custody
Sentencing ranges: 12 months - 2 years 6 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.
The following table is for cases where the victim was aged 16 or 17 when the sexual relationship commenced and the relationship is only unlawful because of the abuse of trust implicit in the 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: 2 years custody
Sentencing ranges: 1 - 4 years custody
Type/nature of activity: Any other form of non-penetrative sexual activity involving the naked contact between the offender and victim
Starting points: 12 months custody
Sentencing ranges: 26 weeks - 2 years custody
Type/nature of activity: Contact between clothed part of offender's body (other than the genitalia) with clothed part of 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
Some help may be provided by Thomas a case relating to s25.
R v Thomas [2006] 1 Cr. App. R (S) 101 - D pleaded guilty to sexual activity with a child family member. Held: The gravamen of this offence lies in the abuse of the relationship with the child. There are three particular factors pertinent to sentence: the age of the parties, the nature of the sexual activity engaged in, and the number of occasions when sexual activity occurs. The younger the child and the greater the age gap the more serious the offence is likely to be. The nature and length of the penetration are relevant: penile penetration will usually, though not always, be more serious than non-penile penetration. Full sexual intercourse is likely to be near the top of the range of seriousness.
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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