Sexual Offences - Unlawful sexual intercourse
Confirmed as up to date - 23/01/08
Code for Crown Prosecutors - Considerations
The public interest requires the prosecution of an offence of unlawful sexual intercourse with a girl under 13 unless exceptional circumstances exist.
You may exercise considerable discretion in relation to offences under section 6 of the Act.
The age of the defendant will be highly relevant. Even if the defendant is over 24, a prosecution may not be in the public interest if he had reasonable cause for believing that the girl was over 16.
The following factors will also be relevant:
- the relevant ages of the parties;
- the emotional maturity of the girl and whether she entered into a sexual relationship willingly;
- the relationship between the parties and whether there was an existence of a duty of care or breach of trust <refer to Sexual Offences - Abuse of Trust, elsewhere in this guidance>.
In summary, a man who is considerably older that the girl is likely to be prosecuted, especially if he owed her a duty of care; whereas it may not be necessary to prosecute a young man with whom the girl has been having a consensual relationship.
The Law
Definition of unlawful sexual intercourse:
- by a man with a girl under 13, section 5 Sexual Offences Act 1956, (Archbold 20-63 and Archbold 20-64).
- by a man with a girl under 16, section 6 Sexual Offences Act 1956, (Archbold 20-74).
Time limits
A prosecution for an offence committed under section 6 (or an attempt to commit that offence) must be commenced within 12 months of the alleged offence.
Mistake at to age
Mistake as to the girl's age is not a defence other than the very limited defence provided by section 6(3) ("the young man's defence") in relation to girls under 16, (Archbold 20-87).
R v K [2001] 3 WLR 471, HL, which examined the offence of indecent assault, did not extend the defence of mistake as to age to the offence of unlawful sexual intercourse (Archbold 20-70).
Registration of sex offenders
Part 1 of the Sex Offenders Act 1997 applies to the section 5 offence. It also applies to the section 6 offence but not where the offender was under 20 (Archbold 20-271j).
Charging Practice
A charge of unlawful sexual intercourse will normally be appropriate if a girl consents in fact to intercourse but she is under the statutory ages in sections 5 and 6 of the Sexual Offences Act 1956.
The legislation is to provide protection for young girls. An underage female cannot be prosecuted as an accessory to the offence committed by a male who has unlawful intercourse with her (R v Tyrrell 1894 1 Q.B. 710).
Specimen charges
For guidance <Refer to Sexual Offences - Rape, specimen charges> and Drafting the Indictment, specimen charges, both elsewhere in this guidance>
Joinder
For guidance <Refer to Sexual Offences-Rape, joinder> and <Drafting the indictment, joinder, both elsewhere in this guidance>
Proof of age
It is for the prosecution to prove that the girl was under the relevant age. A certified copy of the birth certificate accompanied with evidence of identity is one way of proving age, (Archbold 20-73).
Character of victim - previous sexual history
Section 41 of the Youth Justice & Criminal Evidence Act 1999 applies to these offences, <refer to Sexual Offences, Rape - Character of victim - previous sexual history> and <R v A - Sexual Offences, Rape - complainant's sexual history in this guidance>.