S8. Causing or Inciting a child under 13 to engage in sexual activity
Date Updated: January 2012
Title: Sexual offences
Offence: Causing or Inciting a child under 13 to engage in sexual activity
Legislation: Sexual Offences Act 2003 S8
Commencement Date: 01/05/2004
Mode of Trial: Penetration - Indictable only
Non-Penetration - Either Way
Statutory Limitations & Maximum Penalty: Penetration - Life Imprisonment
Non-Penetration - On Indictment - 14 years imprisonment;
Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability & Harm
All non-consensual offences involve the violation of the victim's sexual autonomy and will result in harm. The seriousness of the violation may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm caused in the first instance. The extreme youth or old age of a victim should be an aggravating factor.
In addition, in principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be. However, the youth and immaturity of the offender must also be taken into account in each case. All the non-consensual offences involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim's consent or without giving due consideration to whether the victim was able to or did, in fact, consent. The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence).
"...the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey on them." (per Rose LJ in R v Corran and others [2005] 2 Cr.App.R.(S) 73)
Aggravating & Mitigating Factors
Aggravating
- Offender ejaculated or caused victim to ejaculate
- History 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
- Offender aware that he or she is suffering from a sexually transmitted infection
Mitigating
- Early guilty plea
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.
The guidelines emphasise:
- The starting point should be the same whether an offender causes an act to take place or incites an act which does not take place.
- A reduction will generally be appropriate where the incited activity does not take place.
- Where an offender voluntarily desists from any action taken to incite a sexual act, or personally and of their own volition intervenes to prevent a sexual act from taking place, this will be an additional mitigating factor.
- Whether or not the sexual activity takes place, the degree of harm done to the victim will be a material consideration when considering the sentence.
The starting points for sentencing for sexual activity that is caused or incited by the offender without the consent of the victim(s) should mirror those for similar activity perpetrated within the offences of 'rape', 'assault by penetration' and 'sexual assault'.
Relevant Sentencing Case Law
Att-Gen Ref no 28 0f 2010, 2010 EWCA 1996. this was a case the Court of Appeal felt fell outside the guidelines. The defendant had directed the abuse of children around the world and filmed it on his computer. He pleaded guilty to a 23 count indictment. Counts 1-19 were indecent images, Counts 20-22 Causing or inciting a child under 13 to participate in sexual activity (non penetration), Count 23 was causing or inciting a child to engage in sexual activity involving penetration. The Reference was brought against the original sentence of 5 years and was allowed. HELD: The judge made two major errors. First, he appeared to have made no reference to the aggravating features. The offences were planned, they involved acts of penetration, there were multiple victims and there were sustained and repeated assaults on vulnerable children. The sentence imposed was wholly inadequate and did not begin to meet the gravity of the offences or reflect the fact that the victims were young, vulnerable children. The fact that the victims were on the other side of the world and that the offences were enabled by modern communications was no mitigation. Indeed, it was an aggravating factor (see paras 16-19 of judgment). The judge fell into error a second time in ordering all the sentences to run concurrently. The offences were separate, committed against separate children, and each merited severe punishment. Offenders such as C needed to be deterred and their victims needed protection (para.20). Nothing in the previous authorities or in the guidelines issued by the Sentencing Guidelines Council grappled with offending like C's. In respect of counts 1-19 the starting point after a trial would have been around seven years' imprisonment. Given the pea of guilty the four-year sentence imposed would not be altered. On counts 20-22 the starting point after a trial would have again been around seven years' imprisonment. The three-year sentence was too low and would be replaced with a consecutive four-year term. The starting point on count 23, after a trial, would have been around 13 years' imprisonment, with a range of 11 to 17 years. Allowing for the guilty plea, the appropriate sentence was one of eight years' imprisonment, to be served consecutively to the four-year sentence on counts 1-19 and concurrently with the four-year sentence on counts 20-22. Those were the very minimum sentences that could be imposed. There was no room for any deduction for double jeopardy or personal mitigation. The total sentence imposed was therefore one of 12 years' imprisonment.
R v Ardener [2006] EWCA Crim 2103. Defendant was 26 and of previous good character. He worked as a primary school teacher and part time judo instructor. He formed a relationship with the complainant who was 12 and pleaded guilty to exchanging inappropriate texts with her saying among other things 'I want to be your first' and making oblique references to masturbation. Held 4 years after trial was excessive. 2 years substituted.
For a similar case involving texts see R v Broughton [2007] EWCA Crim 566. For a case where a defendant which a previous conviction for indecent images made sexual suggestions to two girls aged 12 and 15 and where 3 years was considered appropriate on a plea see R v Butcher [2009] EWCA Crim 1458.
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.
