S64 & 65. Sex with an adult relative: penetration (S64) and Sex with an adult relative: consenting to penetration (S65)

Date Updated: January 2012
Title: Sexual Offences
Offence: Sex with an adult relative: penetration (S64) and Sex with an adult relative: consenting to penetration (S65)
Legislation: Sexual Offences Act 2003 - S64 & S65
Commencement date: 1/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:

• On Indictment - 2 years
• Summary Conviction - 6 months imprisonment and/or statutory maximum fine

Culpability & 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 two offences within this category are triable either way and carry a maximum penalty of 2 years' imprisonment on conviction on indictment. The relatively low maximum penalty for these offences reflects the fact that they involve sexual relationships between consenting adults.

For these offences, unlike those against child family members, the relationship between offender and victim is narrowly defined in terms of close blood relationships only: 'a parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece'.

It is a defence to both offences that the offender was unaware of the blood relationship, unless it is proved that he or she could reasonably have been expected to be aware of it.

These offences could be charged in a wide range of circumstances and the most important issue for the sentencer to consider is the particular circumstances in which an offence has taken place and the harm that has been caused or risked:

• Where an offence involves no harm to a victim (other than the offensiveness of the conduct to society at large), the starting point for sentencing should normally be a community order.
• Where there is evidence of the exploitation of a victim or significant aggravation, the normal starting point should be a custodial sentence.
• The presence of certain aggravating factors should merit a higher custodial starting point.

Examples of aggravating factors especially relevant to these offences include:

• high level of coercion or humiliation of the victim;
• imbalance of power;
• evidence of grooming;
• age gap between the parties;
• history of sexual offending;
• sexual intercourse with the express intention of conceiving a child or resulting in the conception of a child; and
• no attempt taken to prevent the transmission of a sexual infection.

Aggravating & Mitigating Factors

Aggravating

• Background of intimidation or coercion
• Use of drugs, alcohol or other substance to facilitate the offence
• Threats to prevent the victim reporting an offence
• Evidence of long-term grooming
• Offender aware that he or she is suffering from a sexually transmitted infection
• Where there is evidence that no effort was made to avoid pregnancy or the sexual transmission of infection

Mitigating:

• Small disparity in age between victim and offender
• Relationship of genuine affection

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.

Type/nature of activity: Where there is evidence of long-term grooming that took place at a time when the person being groomed was under 18  

Starting points: 12 months custody if offender is 18 or over  
Sentencing ranges: 26 weeks - 2 years custody

Type/nature of activity: Where there is evidence of grooming of one party by the other at a time when both parties were over the age of 18  

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

Type/nature of activity: Sexual penetration with no aggravating factors  

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 assistance may be provided by pre-guideline cases both of which involve the birth of babies after relationships between fathers and adult daughters.

R v DM 1 Cr App R (S) 59

R v B 1 Cr App R (S) 91

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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