The New Sexual Offences Act 2003
This fact sheet has been designed to outline the main changes in law resulting from the new Sexual Offences Act 2003. It received Royal Assent in November 2003 and came into force on 1 May 2004. It makes many changes to the current law, much of which dates back to the Sexual Offences Act 1956.
The Act is split into two parts the first devoted to sexual offences, creating new offences and widening the scope of existing ones, and the second covering offenders with an emphasis on the protection of vulnerable individuals. It provides clear and coherent sex offences to protect individuals from abuse and exploitation, and is designed to be fair and non-discriminatory.
Rape and Consent
Rape is redefined to include penetration of the mouth as well as penetration of the vagina or anus by the penis.
There are three new measures on the issue of consent:
- There is now a statutory definition on the issue of consent: a person consents if he or she agrees by choice to the sexual activity and has the freedom and capacity to make that choice.
- All the circumstances at the time of the offence will be looked at in determining whether the defendant is reasonable in believing the complainant consented.
- People will be considered most unlikely to have agreed to sexual activity if they were subject to threats or fear of serious harm, unconscious, drugged, abducted, or unable to communicate because of a physical disability.
The new measures are designed to redress the balance in favour of victims without prejudicing the defendant's right to a fair trial, to help juries reach just and fair decisions on what is a difficult area or prosecution.
Child Sex Abuse
The Act closes a loophole that has allowed those accused of child rape to escape proper punishment by arguing that they consented. Any sexual intercourse with a child under 13 will be treated as rape. The other non-consensual offences against children under 13 are sexual assault by penetration, sexual assault and causing or inciting a child to engage in sexual activity.
There are new offences of adult sexual activity with a child under 16. These cover a range of behaviour, involving both physical and non-physical contact. But where the child is under 13 and the behaviour involves physical contact or inducing a child to perform a sexual act, the adult will be charged with a non-consensual offence. As children and young persons commit sexual crimes on other children, these offences apply not only to adults but also to persons under 18.
Prosecutions of persons under 18
The age of consent is 16. Children can and do abuse and exploit other children. Therefore, the Act makes it an offence for children under 16 to engage in sexual activity in order to protect those children who are victims of abuse and exploitation.
However, just as children were highly unlikely to be prosecuted under the previous law, children of the same or similar age are highly unlikely to be prosecuted for engaging in sexual activity, where the activity is mutually agreed and there is no abuse or exploitation.
The Crown Prosecution Service has issued guidance to prosecutors, which sets out the criteria they should consider when deciding whether or not it is in the public interest to bring a prosecution.
How the law affects those who advise children
A person does not commit an offence of aiding or abetting a child sex offence if they give advice to children in order to protect them from sexually transmitted infection, protecting their physical safety, preventing them from becoming pregnant, or promoting their emotional well-being. This means that parents, doctors, other health professionals, in fact any one can provide sexual health advice to children whose only motivation in doing so is the protection of the child. However, those persons who cause or encourage the child to engage in the activity or if they do it to obtain sexual gratification will be liable to prosecution.
Abusive parents and carers
There are new offences of familial child sex offences that cover not only assaults by blood relatives but also foster and adoptive parents and live-in partners. The offences of abuse of a position of trust have been amended and re-enacted, prohibiting sexual contact between adults and children under 18 in schools and colleges and residential care, in order to protect vulnerable 16 and 17 year olds.
Sexual Offences involving the Internet, and 'grooming'
It is acknowledged that sexual approaches to children on-line are increasing. To combat this there is a new offence of meeting a child following sexual grooming, which makes it a crime to befriend a child on the internet or by other means and meets or intends to meet the child with the intention of abusing them. The maximum sentence is 10 years imprisonment. A new civil preventative order, the Risk of Sexual harm Order, may be imposed which will prohibit adults from engaging in inappropriate behaviour such as sexual conversations with children on-line.
Monitoring convicted sex offenders
The Act will make the notification requirements stronger and easier to enforce. Convicted sex offenders will have to report each year to their local police regardless of whether their circumstances have changed. They will have to inform the police if they change their name or address within three days instead of the previous fourteen days, and disclose if they spend seven days or more away from home. They will also have to supply their national insurance number. Failure to report is still a criminal offence that carries a prison term of up to five years.
The Act also extends the requirements to cover violent offenders. This will allow Sex Offender Preventative Orders to be imposed on anyone convicted of a serious violent offence if there is evidence that they pose a risk of causing serious sexual harm.
The Act provides for "sex tourists" convicted of sex crimes abroad to comply with the notification requirements. In addition, there is a new foreign travel banning order that will enable courts in certain circumstances, to prohibit those convicted of a sexual offence against a child under 16 from travelling abroad.
The Act also provides for the police to apply for a Risk of Sexual Harm Order against any person thought to pose a risk to children under 16.
Other Offences in the new Act
There are new offences against trafficking persons into, within and out of the country for the purposes of sexual exploitation.
There are new offences to prevent children from being abused through prostitution and pornography. They cover a range of activity including: buying the sexual services of a child, causing or encouraging child prostitution or pornography, arranging or facilitating child prostitution or pornography, and controlling any of the activities of a child involved in prostitution or pornography.
There are new offences to protect vulnerable persons with a mental disorder from sexual abuse. These include where they are unable to refuse because of a lack of understanding, where they are offered inducements or subject to threats or are deceived, and where there is a breach of a relationship of care, by care workers.
There is a new offence of voyeurism that criminalises those who observe for sexual gratification people engaged in a private act who do not consent to being observed.
There is the offence of exposure where a man or woman exposes their genitalia with intent to cause alarm or distress.
There are preparatory offences, such as drugging a person with intent to engage in sexual activity with that person; committing any offence with intent to commit a sexual offence; and trespassing on any premises with intent to commit a sexual offence.
There is an offence of engaging in sexual activity in a public lavatory.