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S9. Sexual activity with a child

Date Updated: January 2012

Title: Sexual offences

Offence: Sexual Activity with a child (Adult only)

Legislation: Sexual Offences Act 2003 S9

Commencement Date: 01/05/2004

Mode of Trial: Penetration - Indictable only
Non-Penetration - Either Way

Statutory Limitations & Maximum Penalty: Penetration - 14 years imprisonment
Non-Penetration - On Indictment - 14 years imprisonment
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 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;
  • the youth and immaturity of the offender; and
  • except where it is inherent in an offence, any breach of trust arising from a family relationship between the child and the offender, or from the offender's professional or other responsibility for the child's welfare, will make an offence more serious.

Aggravating & Mitigating Factors

Aggravating

  • Offender ejaculated or caused victim to ejaculate
  • Threats to prevent victim reporting the incident
  • Offender aware that he or she is suffering from a sexually transmitted infection

Mitigating

  • Small disparity in age between the offender and the victim

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.
  3. 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.

"...no precise guidance can be given.  The appropriate sentence is likeley to lie within a very wide braket, depending on all the circumstances of the particular offence.  There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey on them.

The sentence for S9 and S10 offences is likely to be less where the victim is under 16 rather than under  13" (per Rose LJ in R v Corran and others [2005] 2 Cr.App.R.(S) 73).

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: 4 years custody 
Sentencing ranges: 3 - 7 years custody

Type/nature of activity: Contact between naked genitalia of offender and naked genitalia or another part of victim's body, particularly face or mouth 

Starting points: 2 years custody 
Sentencing ranges: 1 - 4 years custody

Type/nature of activity: Contact between naked genitalia of offender or victim and clothed genitalia of victim or offender or contact with naked genitalia of victim by offender using part of his or her body other than the genitalia or an object 

Starting points: 12 months custody 
Sentencing ranges: 26 weeks - 2 years 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 Corran and others [2005] 2 Cr.App.R.(S) 73

R v Davies [2005] EWCA Crim 1363 - D aged 19 (extensive record none for sexual offences) pleaded guilty to penetrative sexual activity with a 13 year old girl. D met the girl who was in drink and consensual sex took place. The defendant was sentenced on the basis he believed the girl to be 15 and she initiated sexual activity. Against this judge noted she was in drink and sex was unprotected. Held 16 months YOI too high reduced to 9 months.

R v Wingrove [2005] EWCA Crim 1392 - D aged 22 formed relationship with a 13 year old neighbour. Evidence the defendant did not appreciate the significance of what he had done Held on a plea the correct sentence was 2 years imprisonment with a 2 year extended sentence.

R v Lister [2005] EWCA Crim 1903 - D was a 31 year old teacher who formed a relationship with a 15 year old female pupil which involved embracing and kissing. Held 18 months imprisonment with a 2 year extended period was too long. Reduced to nine months and a 2 year extension period.

See also R v Chadwick [2005] EWCA Crim 2531 12 months YOI for a 19 year old who had sexual intercourse with a 13 year old girl while she was under the influence of drink reduced to 6 months.

R v Held [2006] EWCA Crim 2174 12 months upheld for a 41 year old woman who admitted forming a relationship with a 14 year old girl. Guilty plea on basis of kissing her breasts and partially penetrating her vagina.

R v Sturt [2009] EWCA Crim 77 D 64 no previous convictions guilty plea to sexual activity with a 12 year old boy who he was teaching golf.  When victim became distressed D apologised and gave him his phone so he could ring his parents. The Court of Appeal balanced the aggravating features of breach of trust and an element of grooming against the fact D used no force, did not press his attention, apologised, appreciated the victims distress and helped him to ring his parents. 3 years reduced to 18 months.

R v Brown [2010] EWCA Crim 754 - D was 23 with no convictions. She had intercourse with a 15 year old friend of her nephew. Victim had tried to blackmail her after offence ended. Their was evidence she had shown extreme remorse, prison reports on her were excellent. HELD This was not manipulative, the victim was not harmed in any way and the age differential was small. 2 years reduced to 30 weeks.

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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