Rape and Sexual Offences - Chapter 7: Key Legislation and Offences

• Key dates
• Selecting Charges - key points
• Sexual Offences Act 2003 - definition of ‘sexual’
• Sexual Offences Act 2003 - non consensual offences
  • Code for Crown Prosecutors
  • Rape (Section 1)
  • Assault by penetration (section 2)
  • Sexual Assault (section 3)
  • Causing sexual activity without consent (section 4)
• Sexual Offences Act 2003 - offences against children
  • Offences against children under 13 (sections 5-8)
  • Rape of a child under 13 (section 5)
  • Assault of a child under 13 by penetration (section 6)
  • Sexual assault of a child under 13 (section 7)
  • Causing or inciting a child under 13 to engage in sexual activity (section 8)
  • Offences against children under 16 (sections 9 - 13)
  • Child sex offences committed by youths (section 13)
  • Other related offences against children under 16
  • Arranging and facilitating a child sex offence (section 14)
  • Meeting a child following sexual grooming (section 15)
  • Sexual Communications with a child (section 15A)
  • Offences against children under 18
  • Abuse of position of trust (sections 16 - 24)
  • Familial child sex (sections 25 - 27)
• Sexual exploitation of children
  • Sections 47 - 50 (as amended by s68(1) to (6) Serious Crime Act 2015)
  • Section 58 Trafficking (repealed)
• Sexual Offences Act 2003 - Offences against persons with a mental disorder
  • Sections 30 - 33 Offences against a persons with a mental disorder impeding choice
  • Sections 34 - 37 offences where there are inducements etc. to a person with a mental disorder
  • Section 38 - 41 Offences by care workers against persons with a mental disorder
  • Section 42
• Sexual Offences Act 2003 - Sex with an adult relative
• Sexual Offences Act 1956
  • Unlawful Sexual Intercourse with a girl under 13
  • Buggery contrary to section 12 Sexual Offences Act 1956
  • Indecent Assault
• Section 1 Indecency with Children Act 1960

Key dates

General

• 27 August 1981 - Criminal Attempts Act in force
• 20 September 1993 - Abolition of the presumption that a boy under 14 was incapable of sexual intercourse and therefore incapable of committing rape.
• 16 September 1985 - Maximum sentence for attempted rape increased from 7 years to life
• 30 September 1998 - Presumption of doli incapax abolished
• 01 May 2004 - Sexual Offences 2003 Act came into force. Sexual Offences Act 1956 and Indecency with Children Act 1960 repealed.

Sexual Offences Act 2003

• 01 May 2004 -Sexual Offences Act 2003 came into force
• 13 April 2015 - Section 15 amended to reduce the number of communications. It is not retrospective.

Indecency with Children Act 1960

• 02 July 1960 Indecency with Children Act came into force
• 01 October 1997 – Maximum sentence for offences against a child under 14 increased from 2 years to 10 years
• 11 January 2001 – Section 1 Indecency amended to a child under 16 years (previously under 14 years)

Sexual Offences Act 1956

• 01 January 1957- Sexual Offences Act 1956 came into force
• 2^nd July 1960 – The maximum sentence for indecent assault on a woman under section 12 increases from 2 years to 5 years if the victim is under 13 and her age is stated on the indictment.
• 16 September 1985 – The maximum sentence for s14 Indecent assault on a woman is increased to 10 years for any age.
• 3 November 1994 - Non-consensual anal intercourse to be charged as rape (previously buggery).
• 3 November 1994 - Maximum sentence for attempted buggery on boy under 16 increased to life
• 3 November 1994 Buggery between consenting adults aged 18 or over legalised.

Selecting charges – key points

When choosing which offences to charge, prosecutors should choose the most appropriate  offence to fit the circumstances of the case, taking account of the courts’ sentencing powers.Counts on the indictment must:

• Reflect the seriousness and extent of the offending supported by the evidence;
• Give the court adequate powers to sentence and impose appropriate post-conviction orders; and,
• Enable the case to be presented in a clear and simple way.

Offences against children under 13, where age can be proved, should be charged under sections 5 - 8, where the circumstances fall within those sections. For example section 5 (rape of a child under 13) should be preferred rather than section 1 rape, so that the charge reflects that the offence was committed against a child and consideration by the jury of the issue of consent is not required.

Where there is an absence of consent, and an absence of reasonable belief in consent, it may be appropriate to charge a non-consensual offence contrary to sections 1-4 or 5-8 SOA 2003 but prosecutors should have regard to available sentencing options. In the case of R v Pain [2018] EWCA Crim 90 featuring non-consensual penetrative sexual activity between an adult and 15 year old boy the decision of the prosecution to favour Section 3 SOA 2003 charges instead of Section 9 SOA 2003 charges was criticised on the basis that the court’s sentencing powers were limited. The court observed “on any view they were offences of sexual activity with a child and therefore could, and in our view should, have been charged as section 9 offences, with a higher maximum penalty.”

Section 25 (familial child sex offence) where the complainant is 13 or over should be charged rather than section 9 (Sexual Activity with a Child), as long as all the elements can be proved. Adopting this approach makes clear the context in which an offence is committed.

The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004 and applies to all offences committed on or after that date. Its purpose was to strengthen and update the law on sexual offences, whilst improving the protection of individuals from sexual offenders. In addition to repealing most, but not all, of the previous legislation and introducing new sentencing options there have also been changes to the maximum sentencing powers and changes to sentencing provisions.

Prosecutors must therefore consider not only which provision was in force at the relevant time but also whether the maximum sentence has changed. Where a count crosses the date of the change in maximum sentence then the lower maximum sentence will apply.

In cases where it is not possible to prove whether the offence occurred before or after 1st May 2004, section 55 Violent Crime Reduction Act 2006 applies. In order to rely on section 55, each offence should be charged in the alternative under the old and new regimes. It will be conclusively presumed that the time when the conduct took place was when the old law applied, if the offence attracted a lesser maximum penalty; otherwise, it will be presumed that the conduct took place after the implementation of the new law.

This guidance highlights key points and charging considerations for prosecutors when deciding on the most appropriate offence. It does not deal with all offences in the Act, nor the notification requirements or the civil preventative orders in detail.

Sexual Offences Act 2003 - definition of ‘sexual’

The definition of sexual is contained within section 78 of the Sexual Offences Act 2003 and applies to all offences in part 1 of the Act, with the exception of section 71 (sexual activity in a public lavatory).

Penetration, touching or any other activity is sexual if a reasonable person would consider that:

1. whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
2. because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

In deciding whether an activity is sexual look first at the nature of the activity. If the activity is by its nature sexual  (eg sexual intercourse, masturbation) then it is sexual for the purposes of the legislation.

Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.

Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.

Touching of clothing might be sexual as in the case of R v H [2005] EWCA Crim 732

Sexual Offences Act 2003 - non consensual offences

Sections 1-4 deal with offences where the defendant engages in sexual activity with the complainant, without the complainant’s consent.

• s1 Rape
• s2 Assault by penetration
• s3 Sexual assault
• s4 Causing sexual activity without consent  (non penetrative)
• s4(4) Causing sexual activity without consent ( penetrative)

Code for Crown Prosecutors

Non-consensual offences under sections 1 - 4 Sexual Offences Act 2003 are so serious that a prosecution is almost certainly required in the public interest.

Where the offender is under 18 additional public interest considerations will apply. Prosecutors should refer to later guidance on prosecuting youth offenders.

Rape (section 1)

Key points

• Rape is a crime of basic intent, and drunkenness is not a defence.
• Section 1 Rape involves penetration of the vagina, anus or mouth by a penis, therefore a woman can only commit this offence as an accomplice.
• Rape is an indictable only offence and carries a maximum of life imprisonment

Charging practice

• Prosecutors should specify in the indictment whether the vagina, anus or mouth was penetrated.
• Where penetration of more than one orifice occurs, separate counts of rape should be preferred.
• The Court of Appeal in R v K [2008] EWCA Crim 1923 held that where it is unclear whether penetration was of the vagina or of the anus, it is permissible to allege penetration of “the vagina or the anus”. The jury will be entitled to convict if they are sure that there was non-consensual penetration of one or the other by the defendant with his penis.

Assault by penetration (section 2)

Key points

• There must be penetration of the vagina or anus but not the mouth.
• Penetration can be with any part of the body (e.g. finger, tongue, toe) or by anything else (e.g. bottle).
• This offence should be charged where, by virtue of the fact that the complainant is unsure if penetration was by a penis or something else, there is insufficient evidence to charge rape
• Assault by penetration is an indictable only offence and carries a maximum of life imprisonment

Sexual Assault (section 3)

Key points

• Touching is widely defined and includes touching another person with any part of the body, or with anything else. Touching can be through clothing. In R v H (Karl Anthony) [2005] 2 Cr. App. R. 9 the Court of Appeal held that the touching of an individual’s clothing was sufficient to amount to ‘touching’ for the purposes of section 3.
• Touching includes touching amounting to penetration e.g. kissing. Where there is sufficient evidence, penile penetration of the vagina, anus or mouth should be charged as rape and penetration of the vagina or anus with any part of a person’s body or other object should be charged as assault by penetration.
• Sexual assault is an either way offence and attracts a maximum 10 year sentence on indictment

Charging practice

• If touching does not occur, then consider an attempt.
• Various activities previously covered by the offence of ‘indecent assault’ now fall within the definitions of offences under the 2003 Act (e.g. assault by penetration, child sex offences and vulnerable adults subjected to a sexual assault). This means that the offence of sexual assault (section 3) will largely now be used in relation to lesser forms of sexual assault, than previously.
• The exact nature of the sexual touching involved will be a key factor in assessing the seriousness of the offence. Prosecutors should refer to the harm and culpability factors and the aggravating and mitigating factors set out in the Sexual Offences Definitive Guideline (link) (“sentencing guidelines”) when considering seriousness and the appropriate sentencing category for the offending.

Causing sexual activity without consent (section 4) (non penetrative) (either way – 10 years on indictment)

Causing sexual activity without consent ( penetrative) (section4(4))(indictable – max life)

Key points

• The offence can be committed by words alone e.g. defendant makes his victim carry out a sexual act, such as masturbation, that only involves the victim.
• This offence covers situations where, for example, a complainant is forced
  • to carry out a sexual act involving their own person, such as masturbation, or
  • to engage in sexual activity with a third party, who may be willing or not, or
  • to engage in sexual activity with the offender e.g. woman forces a man to penetrate her.
• This section creates two separate offences, penetrative and non-penetrative.
• The mode of trial and maximum sentence varies depending on whether there is penetration.
• The non-penetrative offence is either way and attracts a maximum 10 year sentence on indictment
• The penetrative offence is indictable only and attracts a maximum sentence of life imprisonment

Charging practice

• The prosecutor should specify either that the sexual activity is penetrative or non-penetrative when selecting and drafting charges under this section.
• One of the purposes of this offence, in addition to the wider range of sexual activity, is to create a female equivalent of the offence of rape, which carries the same level of punishment for what amounts to the same type of offending behaviour.
• If the complainant is under 13 years then the offence should be charged under Section 8 Sexual Offences Act 2003. If the complainant is 13 to 15 and there is no consent the offence should be charged under Section 4 Sexual offences Act 2003.
• If the suspect is 18 or over and in a position of trust to the complainant and the complainant is aged 16 or 17 the offence should be charged under Section 17 Sexual Offences 2003.
• In determining seriousness reference should be made to the sentencing guidelines.

Sexual Offences Act 2003 – offences against children

The 2003 Act identifies three categories of offences against children of different ages. They are:

• Offences against those under 13;
• Offences against those under 16;
• Offences against those under 18.

Offences against children under 13 (sections 5-8)

• s5 rape s6 assault by penetration
• s7 sexual assault of a child under 13
• s8 causing or inciting sexual activity with a child
• s8(2) causing or inciting sexual activity with a child

Section 5: Rape of a child under 13

• Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.
• In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing but only after consideration has been given to the impact on the child and the public interest in proceeding in this way. On no account should a section 1 rape count be added as an alternative. Juries should not be asked to deliberate upon issues that are critical to sentence which are not necessary to substantiate a charge in law. Rather these are questions that a judge should consider by hearing evidence on the relevant point and according to the procedure as set out in R v Newton 77 Cr. App. R. 13. See case of Delahaye-Bryan [2015] EWCA Crim 1987.
• The section 5 offence is an indictable only offence and carries a maximum sentence of life imprisonment

Section 6: Assault of a child under 13 by penetration

• Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under 13 with a part of his body, or with anything else.
• A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.
• The section 6 offence is an indictable only offence and carries a maximum sentence of life imprisonment

Section 7: Sexual assault of a child under 13

• Section 7 makes it an offence for a person to touch a child under 13 sexually.
• The section 7 offence is an either way offence and carries a maximum sentence of 14 years imprisonment

Section 8: Causing or inciting a child under 13 to engage in sexual activity

• Section 8 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity.
• Section 8 creates two offences to reflect causing or inciting 1) penetrative sexual activity and 2) non-penetrative sexual activity
• The offences cover the situation where sexual  activity itself does not take place.
• The non-penetrative offence is an either way offence and carries a maximum sentence of 14 years imprisonment.
• The penetrative offence is an indictable only offence and carries a maximum sentence of life imprisonment.

Key Points

• Sections 5 - 8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant.
• A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
• The under-13 offences overlap to a very significant extent with the child sex offences (sections 9 - 15 of the 2003 Act), which are designed to protect children under 16. However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect such children. This is to ensure the availability of the higher maximum penalties for the under-13 offences and avoid children under 13 giving evidence in relation to consent.
• These are offences of strict liability as to age. The prosecution has to prove only two facts.
  • First, the intentional sexual activity and
  • Second, the age of the complainant at the date of the sexual activity, using, for example, a certified copy of a birth certificate together with evidence of identity.
• Note: R v G [2008] UKHL 37 Offences of strict liability are compatible with Article 6.2 ECHR
• There is no defence of mistaken reasonable belief in the age of the complainant.

Code for Crown Prosecutors – Adult Defendant

• The intention behind the Sexual Offences Act 2003 is to provide maximum protection to very young children, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent.
• Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity addressed by sections 5 - 8, a prosecution will normally be required unless there are public interest factors tending against prosecution, which outweigh those tending in favour.

Code for Crown Prosecutors – Youth  Defendant (under 18)

• Where the offender is under 18 prosecutors should refer to legal guidance on Youth Offenders, and to the additional public interest considerations and factors which must be addressed when considering the prosecution of a youth for a sexual offence.
• Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).

Charging Practice

• If the offence is penetrative, section 7 and section 8 become indictable only offences. Prosecutors must specify whether the sexual activity is penetrative or non-penetrative when drafting the indictment.
• Where the offence is either way prosecutors should refer to the sentencing guidelines when assessing seriousness.

Offences against children under 16 (sections 9 - 13)

The 2003 Act provides that the age of consent is 16. Sections 9 -13 clarify that any sexual activity involving consenting children under 16 is unlawful.Sections 9-12 cover adult defendants. Section 13 relates to child defendants.

• Section 9 Sexual activity with a child
• Section 10 Causing or inciting a child to engage in sexual activity
• Section 11 Engaging in sexual activity in the presence of a child
• Section 12 Causing a child to watch a sexual act 

Key Points

• Consent is irrelevant.
• There is a defence of reasonable belief that the child is 16 years or over. The defence of reasonable belief does not apply if the child is under 13 years. 
• There is no defence for lawfully married overseas couples where one party is under 16. 
• Sections 9 and 10 create two separate offences of penetrative and non-penetrative sexual activity. If penetration is involved the offence is indictable only. The maximum sentence on indictment is 14 years.
• Sections 11 and 12 are either way offences which attract a maximum sentence of 10 years imprisonment.
• Under section 11, there is no requirement that the complainant is actually aware of the activity, though there is a requirement that the complainant is present, or could potentially observe it. Observation can be via a webcam and includes an image.
• In accordance with Section 13 a person under 18 commits an offence if he does anything which would amount to an offence under Sections 9-12.

Charging Practice

• If there are difficulties proving the non-consensual offence, then an offence under section 9 may be appropriate (where the elements can be proved).
• When there is an absence of consent, and an absence of reasonable belief in consent non-consensual non-consensual offences contrary to sections 1-4 or 5-8 SOA 2003 are also available but as per R v Pain [2018] EWCA Crim 90 prosecutors should always have regard to available sentencing options. The case of Pain featured consensual penetrative sexual activity between an adult and a 15 year old boy and the decision by the prosecution to favour Section 3 SOA 2003 charges instead of Section 9 SOA 2003 charges was criticised on the basis that the court’s sentencing powers were limited. The court observed “on any view they were offences of sexual activity with a child and therefore could, and in our view should, have been charged as section 9 offences, with a higher maximum penalty.”
• Offences under sections 25 and 26 (familial child sex offences) may also come within sections 9 and 10. Prosecutors should charge the familial child sex offence where there is clear evidence of a familial relationship.
• If a child is under 13 and the age can be proved, prosecutors should charge a non-consensual offence under sections 5 - 8.
• If there is difficulty proving the child is under 13 then a child sex offence under sections 9 - 12 should be charged.

Section 13: Child sex offences committed by youths

Key Points

• Pursuant to Section 13 SOA 2003 it is an offence if a person under 18 commits an act which would amount to an offence under sections 9 - 12.
• Pursuant to section 13 the maximum penalty on indictment is reduced to imprisonment to a term not exceeding 5 years.
• Prosecutors must also apply the Code and any relevant CPS policies.
• Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).

Code for Crown Prosecutors (Sections 5-13 SOA 2003)

In deciding whether or not to prosecute offences contrary to Sections 5-13 SOA 2003, prosecutors should have careful regard to the factors below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. However, when deciding whether it is the public interest to prosecute, prosecutors may exercise more discretion in relation to child sex offences where the complainant is aged 13 - 15 than for those offences where the child is under 13 years.

Prosecutors should have regard to the following factors:

• The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led him or her to commit the offence;
• The relevant ages and levels of maturity of the parties, i.e. the same or no significant disparity in age;
• Whether the complainant entered into sexual activity willingly, i.e. did the complainant understand the nature of his or her actions and that (s)he was able to communicate his or her willingness freely;
• Parity between the parties in regard to sexual, physical, emotional and educational development;
• The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;
• Whether there is any element of exploitation, coercion, threat, deception, grooming, seduction, manipulation or breach of trust in the relationship;
• Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her/ his age was in fact made;
• The nature of the activity e.g. penetrative or non-penetrative activity;
• The sexual and emotional maturity of the parties and any emotional or physical effects resulting from the conduct; and
• The likely impact of any prosecution on the parties.

Other related offences against children (under 16)

• Section 14 Arranging and facilitating a child sex offence
• Section 15 (as amended) Meeting a child following sexual grooming
• Section 15(a) Sexual Communications with a child

Section 14 Arranging and facilitating a child sex offence

Key Points

• The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.
• A person must intentionally arrange or facilitate for himself or another something that he intends or believes would happen that would result in a commission of a child sex offence in any part of the world (sections 5 -13).
• There is a defence if the person arranges or facilitates something that although he believes might happen, he does not intend it to happen, and he acts for the protection of the child i.e. from sexually transmitted infection; physical safety; from becoming pregnant; or promoting the child's well-being by giving advice. For example, where a person provides a condom to a girl under 16 in order to protect her from sexually transmitted infections/pregnancy in circumstances where she says she is already having sexual intercourse.
• However, the defence does not apply if the person acts for the purpose of causing or encouraging the activity constituting the child sex offence or the child's participation in it. For example, a person who gives a condom to a child under 16 to protect her from pregnancy whilst arranging for her to have sex with a friend. Similarly, the defence does not apply if the person acts for the purpose of obtaining sexual gratification.

Charging Practice

• If considering a charge under s14, in which no real child was involved, such as cases involving undercover officers or ‘vigilante groups’, prosecutors should charge the substantive offence and not an attempt.
• Section 14(1) creates an offence which is a substantive inchoate offence. It is similar to, but broader than, an attempt. See R [2008] EWCA Crim 619. ‘Arranging’ and ‘facilitating’ are different considerations to ‘more than merely preparatory’. As such, there will be circumstances which would constitute ‘arranging‘ or ‘facilitating’, but fall short of an ‘attempt’.
• The focus of the offence is on the child sexual offence which the person intended to arrange or facilitate. The fact that an offence may have been impossible has no bearing on the intention possessed at the time it was arranged of facilitated.
• The offence is committed if the person intentionally arranges or facilitates the commission of an offence under sections 5 -13 SOA 2003. It is only necessary to prove the arrangement or facilitation together with the requisite mens rea to commit a section 5 -13 SOA 2003 offence in the future. The proof of an arrangement or facilitation is not dependent on the possibility of carrying it out.
• Prosecutors should also refer to legal guidance on internet vigilantes when considering potential charges contrary to this section.
• The offence is either way and carries a maximum sentence of 14 years on indictment.

Section 15 Meeting a child following sexual grooming

Key points

• This offence is intended to protect children from adults who communicate (not restricted to on-line communications) with them and then arrange to meet them with the intention of committing a sexual offence against them, either at that meeting or subsequently.
• The offence is committed when the offender meets the child or travels with the intention of meeting the child, or arranges to meet the child, or the child travels with the intention of meeting the offender.
  • The meeting or at least part of the travel must take place within the jurisdiction.
  • The person must have an intention to commit any offence under Part 1 of the 2003 Act or any act done outside England and Wales, which would be an offence in the jurisdiction. This may be evident from the previous communications or other circumstances e.g. an offender travels in possession of ropes, condoms or lubricants, etc.
  • The child is under 16 and the adult does not reasonably believe that the child is over 16. However, if this is not the case e.g. the child’s place has been taken by an undercover police officer, an attempt could be charged.
• The offence only applies to adults.
• There must be communication (a meeting or any other form of communication) on at least one previous occasion. It is not necessary for the communications to be of a sexual nature.
• The communication can take place anywhere in the world.
• The Section 15 offence is either way and attracts a maximum penalty of 10 years imprisonment on indictment.
• Prosecutors should be aware of the activities of so called ‘Internet Vigilantes’ (link) who are members of the public using social media to uncover alleged paedophiles and refer to the related guidance.

Section 15A Sexual Communications with a child

Key points

• Section 67 of the Serious Crime Act 2015 inserts a new offence into the Sexual Offences Act 2003, at section 15A, criminalising sexual communication with a child.
• The provisions came into effect on 3 April 2017 and the offence is not retrospective.
• The offence is committed where a person aged 18 or over intentionally communicates with a child under 16, who the adult does not reasonably believe to be 16 or over, if the communication is sexual or if it is intended to encourage the child to make a communication which is sexual. The offence will be committed, whether or not the child communicates with the adult.
• A communication is sexual “if any part of it relates to sexual activity or a reasonable person would consider any part of the communication to be sexual”.
• The offence applies equally to online and offline communications and irrespective of the way the communication is made (for example it will apply to oral communications as well as to emails and text messages) and the offence can be prosecuted extra-territorially in the same way as other child sex offences.
• The offence will apply only where the defendant can be shown to have acted for the purposes of obtaining sexual gratification
• The offence is either way and attracts a maximum prison sentence of 2 years on indictment and the offence automatically attracts the notification requirements for registered sex offenders under the Sexual Offences Act 2003.

Offences against children under 18

Sections 16 – 24 Abuse of position of trust

Key points

• The primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives.
• These offences are primarily concerned with the child giving ostensible consent to the activity, but that consent is not relevant because of their particular relationship with the abuser.
• Positions of trust are defined in sections 21 and 22 SOA 2003, as amended by section 45 of the Police, Crime, Sentencing and Courts Act 2022, which inserts section 22A. This provision extends the definition of ‘position of trust’ to include someone who knowingly coaches, teaches, trains, supervises or instructs children on a regular basis, in a sport or a religion. However, section 22A will not apply where someone is in a position of trust in relation to another person in circumstances where section 21 applies.
• The prohibited sexual behaviours in sections 16 - 19 are identical to those prohibited by sections 9 – 12 (i.e. sexual activity with a child; causing a child to engage in sexual activity; sexual activity in the presence of a child; and causing a child to watch a sexual act).
• See section 23 for the defence for spouses and civil partners and section 24 for sexual relationships which pre dated the position of trust.
• These offences are either way and attract a maximum sentence of 5 years on indictment.

Charging practice

• These offences are designed to protect 16 and 17 year olds from sexual relationships which would not be criminal but for the suspect’s position of trust in relation to the complainant.
• Prosecutors should charge an offence contrary to sections 1 - 4 where the child is 16 or 17 and lack of consent can be proved.
• Prosecutors should reflect the unlawful nature of the sexual activity by charging child sex offences contrary to sections 5 - 8 (child under 13) or sections 9  -12 (child under 16) if, appropriate, which attract significantly higher sentences.
• It may be appropriate to charge an abuse of trust offence where the victim is under 16 when it is likely that the person in a position of trust reasonably believed that the child was 16 or over.

Sections 25 – 27 Familial child sex offences

Key points

• These offences reflect the modern family unit and take account of situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or living together as partners.
• For the purposes of sections 25 and 26 family relationships are defined in section 27 and fall within three categories:
  • First, those listed in subsection (2), such as parent, grandparent, brother, sister, step-parent, half-brother, half-sister, uncle, aunt, foster parent etc., will always be family members;
  • Second, those listed in subsection (3), such as partner of the other’s parent or cousins, will only be family members if A lives, or has lived in the same household or is or has been involved in the caring, supervising or sole charge of the child.
  • The third category is similar to the second except that it applies only to those who are currently living in the same household e.g. an au pair who has responsibility for the child.
• Where penetration is involved the offences are indictable only and carry a maximum sentence of 14 years imprisonment. Where penetration is not involved the offences are either way and carry a maximum sentence of 5 years imprisonment.
• Sections 64 and 65 cover offences of sex with an adult relative and relate only to blood relatives - see the guidance on Offences: Sex with an adult relative (link).

Charging practice

• Where a child victim is under 13, prosecutors should charge an offence under sections 5 - 8, if appropriate, notwithstanding that sections 25 and 26 apply to a child under 13.
• Prosecutors should note requirements in relation to charge authorisation where both the suspect and the complainant in a sex case were under 13 at the time the offence was committed.
• If there is difficulty in proving the age is under 13, then prosecutors should charge under sections 25 and 26, provided that the other elements of the offence can be proved.
• Prosecutors can consider an offence contrary to sections 1-4 where the child is over 13 and a lack of consent can be proved but, as per the case of R v Pain [2018] EWCA Crim 90, consideration should be given to the sentencing powers available to the court.
• In some cases involving children aged between 13 and 15 years offences may fall within the familial offences and also the equivalent offences where there is no familial link such as sections 9 and 10 SOA 2003. Where there is sufficient evidence to prove the family relationship and an offence under sections 9 and 10 SOA 2003 prosecutors should charge a familial offence.
• For a child aged 16 or 17 where a lack of consent cannot be proved prosecutors can only charge familial offences.

Code for Crown Prosecutors

• The public interest factors in relation to ‘under 13’ offences (sections 5 - 8) and child sex offences (sections 9 -10) apply to sections 25 - 27 familial child sex offences but prosecutors should bear in mind the specific breach of trust in the familial offences.

Sexual exploitation of children

There is no specific offence of child sexual exploitation (CSE); it is defined in government guidance and policy in this way:

“Child sexual exploitation is a form of child sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears consensual. Child sexual exploitation does not always involve physical contact; it can also occur through the use of technology.”

Section 51 of the Sexual Offences Act 2003 defines sexual exploitation for the purposes of offences contrary to sections 48 to 50 of the Sexual Offences Act 2003. On 31 March 2017, s.176 of the Policing and Crime Act 2017 expanded the definition of ‘sexual exploitation’ to include situations where images are streamed (such as via the internet) or otherwise transmitted by some other technological means, such as CCTV.

Coercion and manipulation often feature in abusive situations so that the child or young person does not understand what is happening. Offenders may groom the child or young person and their family and friends, gaining their trust or they may make threats.  Sometimes, the offender may exert control but implicating the victim in other criminal activity (e.g. possession of illegal drugs or shoplifting). Some offenders may claim that the victim has brought shame on their family. Prosecutors should be aware of cultural barriers to reporting such abuse.

Offenders may avoid suspicion by taking victims to be abused for a short time or during school hours so their absence is not noticed. The fact that a victim is maintaining a seemingly normal routine does not mean they have not been victims of sexual abuse.

'Grooming' is not a specific form of child sexual exploitation but should be seen as a way in which perpetrators target children and manipulate their environments. It is an approach to exploitation and may be the beginning of a complex process adopted by abusers. Grooming can be defined as developing the trust of a young person or his or her family in order to engage in illegal sexual activity or for others to engage in illegal sexual activity with that child or young person.

Sections 47 - 50 provide offences specifically to tackle the use of children in the sex industry who are victims of abuse and sexual exploitation. Although the legal age of consent is 16, Parliament recognised the need to protect children up to the age of 18 from those who seek to exploit them for the purposes of prostitution or pornography. The terminology, which previously referred to child prostitution, was updated by the Serious Crime Act 2015 to reflect the exploitative nature of these acts.

Sections 47 - 50 (as amended by s68(1) to (6) Serious Crime Act 2015)

• Section 47 Paying for the sexual services of a child
• Section 48 Causing or inciting sexual exploitation of a child
• Section 49 Controlling a child in relation to sexual exploitation
• Section 50 Arranging or facilitating sexual exploitation

Key points

• A person is a child if under 18.
• Consent is not in issue. It does not matter if a child of 16 or 17 consents to the activity, it is those who exploit children who commit the criminal act.
• The defence that a person reasonably believed the child was over 18 does not apply if the child is under 13.
• The definition of payment is very wide.
• A person is involved in pornography if an image of the child is recorded.
• Section 176 of the Policing and Crime Act 2017 revised the definition of Child Sexual Exploitation set out in section 51 Sexual Offences Act 2003 to include situations where indecent images of a child are “streamed or otherwise transmitted” as well as where they are recorded, making the offences more robust in the light of technological changes and ensuring that those who exploit children in this way can be effectively prosecuted for the appropriate offence.
• Section 47 is an indictable only offence if penetration occurs and the maximum sentence is 14 years imprisonment, or life imprisonment if the victim is under 13 years of age. Where the child is 16 or 17 the offence is either way and the maximum sentence is 7 years irrespective of penetration.
• Section 48 is an either way offence. The maximum sentence is 14 years imprisonment.
• Sections 49 and 50 attract the same sentences as per Section 48.

Charging practice

• Where a child is under 13, prosecutors should charge an offence, if appropriate, under sections 5 - 8.
• Where there are problems proving the defendant did not have a reasonable belief that the child was over 18, prosecutors may consider an offence contrary to sections 52 or 53 ( adult prostitution offences) provided the elements of the offence can be proved.
• In drafting offences under section 47, prosecutors should specify whether the activity is penetrative or non-penetrative as different maximum penalties apply.

Code for Crown Prosecutors

• These are very serious offences in which the public interest will normally require a prosecution unless the factors tending against prosecution outweigh those in favour.

Section 58 Trafficking (repealed)

• Section 2 of the Modern Slavery Act 2015 repealed and replaced section 58 Sexual Offences Act 2003 that criminalised trafficking for sexual exploitation. This is effective from 31 July 2015. Offences prior to this date should be charged under the previous legislation.
• Offences involving child sexual abuse may involve the movement of children within the UK in order to facilitate child sexual exploitation by other offenders. This may involve organised crime gangs and vulnerable teenage girls who are groomed to co-operate with sexual exploitation and transported to different locations where they are subject to further abuse by other offenders. In these circumstances reference should be made to other legal guidance on Trafficking (link) and consideration given to charging a trafficking offence under section 58 Sexual Offences Act 2003, if it predates the enactment of the Modern Slavery Act 2015.
• In cases where offences may be considered under section 2 of the Modern Slavery Act 2015 for trafficking within the UK for child sexual exploitation it is irrelevant whether the victim consented to the travel (section 2(2) Modern Slavery Act 2015) and in this context, travel means recruiting, transporting or transferring, harbouring or receiving the victim or exchanging control over them.

Sexual Offences Act 2003 - Offences against persons with a mental disorder

Sections 30 - 41 protect persons with a mental disorder who are vulnerable to sexual exploitation and creates three categories of offence.

Sections 30 - 33 Offences against a persons with a mental disorder impeding choice

The first category relates to persons whose mental functioning is so impaired at the time of the sexual activity that they are unable to make any decision about their involvement in that activity through a lack of capacity to choose or an inability to communicate such choice.

Sections 34 – 37 offences where there are inducements etc. to a person with a mental disorder

The second category relates to those who have capacity to consent to sexual activity but whose mental disorder is not so severe they are unable to refuse but who are vulnerable to inducement, threat or deception.

Section 38 – 41 Offences by care workers against persons with a mental disorder

The third category relates to those who have capacity to consent but who for reasons associated with their mental disorder may agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon the carer.

Key points

• The prohibited sexual activity in each category above is the same activity as for the child sex offences (sections 9 - 12) i.e. intentional sexual touching, engaging in sexual activity in the presence of a person and causing a person to watch a sexual act and the four breach of trust offences in sections 16 -19.
• For offences under sections 30 – 37, prosecutors must prove the complainant has a mental disorder and the defendant knows or could reasonably be expected to know that.
• For offences committed by care workers, there is a presumption that the defendant knew or could reasonably be expected to know of the mental disorder unless sufficient evidence is adduced to raise this as an issue.
• Mental disorder is defined as set out in section 1 Mental Health Act 1983, as amended by Mental Health Act 2007, as “any disorder or disability of the mind”. As well as including serious mental illness this definition ensures protection of those with lifelong learning disability and persons who develop dementia later in life.
• Medical evidence will usually be required to prove the mental disorder.
• Section 42 defines the relationship of care (see below for more detail).
• Defences include marriage (section 43) and a pre-existing sexual relationship (section 44).
• Offences involving penetration as outlined in the relevant sections will be indictable only.
• The maximum sentence for Sections 30, 31, 34 and 35 is life imprisonment if penetration occurs otherwise the maximum sentence 14 years on indictment.
• Sections 32, 33, 36 and 37 are either way offences and attract a maximum sentence of 10 years on indictment.

Charging practice

• The prosecutor must specify in the indictment whether sexual activity is penetrative or non-penetrative and particularise the nature of the penetrative activity .
• Where the offence is either way prosecutors should refer to the sentencing guidelines when assessing seriousness.

Section 42

This section defines when a person is involved in the care of another for the purposes of section 38 - 41.

Key points

• Subsection 2 applies if the person is accommodated and cared for in a care home, community home, voluntary home or children’s home and the offender performs functions in the home in the course of employment which brings him or her into regular face to face contact.
• Subsection 3 applies to National Health Service bodies or independent medical agencies.
• Subsection 4 applies to anyone providing care assistance or service in connection with the persons mental disorder whether or not in the course of employment. This section therefore covers persons being cared for in their own home. Home office guidance gives an example falling into this section of a voluntary care worker who takes a mentally disordered person on weekly outings or visits him at home to provide complimentary therapy.
• There is no requirement for paid employment, volunteers can be caught under this provision.

Sexual Offences Act 2003 - Sex with an adult relative

Sections 64 and section 65 Sexual Offences Act 2003 make it an offence to have sex with an adult relative either by committing, or consenting to, an act of sexual penetration.

Key Points

• The ways in which the parties are related are set out in section 64(2) and includes uncles, aunts and adoptive parents but not their spouses or partners.
• In cases where a lawful relationship pre-dated the act and in the absence of exploitation it is unlikely to be in the public interest to prosecute.
• Prosecutors should bear in mind that all adult parties will commit an offence providing they either commit or consent to the act, regardless of whether or not they are the ‘victim’. Prosecutors should always consider the position of the parties individually and identify any issues of exploitation and victimisation. Although both may have committed an offence, different factors may apply to each, especially in relation to the public interest.
• A number of cases referred to CPS involve young women who, having grown up apart from their absent father, have felt the need to seek him out in adulthood. It is not uncommon in cases of this nature for suspects who are fathers to claim that the sexual relationship was instigated by their daughter and to suggest that it is they who have been seduced. Prosecutors should always question the credibility of such assertions and acknowledge, in reaching any decision, that the exploitation of a daughter for sexual purposes always involves a gross breach of trust.

Charging Practice

• These offences should primarily be reserved for situations where a history of abuse against a child family member continues into adulthood or where a suspect sexually exploits an adult relative who is vulnerable.
• Prosecutors should consider the circumstances in which the relationship first arose and how long it has existed.
• Where a history of exploitation and grooming can be shown, at least in the early stages of the relationship, a prosecution for non recent offences of rape, sexual assault or similar may be appropriate in addition to any offence committed under sections 64 and 65.
• The offences are either way and attract a maximum sentence of two years imprisonment.

Code for Crown Prosecutors

In addition to the public interest factors outlined in paragraph, prosecutors should bear in mind the following:

• In the absence of factors in favour of a prosecution and where the relationship can be shown to have arisen between adults, without coercion or exploitation, a prosecution is unlikely to be required.
• Any potential adverse impact of a prosecution on the child or children born as a result of the relationship requires careful consideration.
• Where the family is subject to social services intervention, prosecutors should carefully consider whether a prosecution, over and above any civil proceedings and supervision, is required in the public interest.
• Where the parties make it clear that the relationship has ended and will not resume in future, this is an additional factor, which may suggest that the public interest does not require a prosecution.
• Conversely, cases in which the relationship continues beyond a decision to advise that no action be taken on public interest grounds will need very careful consideration. In the event of such circumstances being further investigated and referred for a charging decision, the fact that a previous decision has been made not to prosecute on public interest grounds will mean that a prosecution is more likely to be in the public interest on any subsequent occasion.

Sexual Offences Act 1956

• The Sexual Offences Act 1956 is the primary piece of legislation covering sexual offending which took place prior to 1 May 2004 . When selecting charges prosecutors must be mindful of changes to offence descriptions, sentencing powers and legal issues including time limits. The key dates and changes are highlighted under each offence and great care must be taken to ensure the indictment is framed to accurately reflect these changes.
• The commencement date of the Act was 01 January 1957 and prosecutors should only use the 1956 Act for offences committed before 1 May 2004. When it is not possible to prove whether the offence occurred before or after 1st May 2004, prosecutors should note that section 55 Violent Crime Reduction Act 2006 applies. In order to rely on section 55, each offence should be charged in the alternative under the old and new regimes.
• The most commonly charged offences under the Sexual Offences Act 1956 are:
  • Section 1 Rape
  • Section 5 Unlawful sexual intercourse by a man with a girl under 13
  • Section 14 Indecent assault on a woman
  • Section 15 Indecent assault on a man
• Offences which are now time barred and should not be charged
  • Section 6 Unlawful Sexual Intercourse with a girl under 16
  • Section 12 Buggery (subject to specific exceptions)
  • Section 13 Gross Indecency

Rape - Key points to note

• The definition of rape was extended by section 142 Criminal Justice and Public Order Act 1994 to include anal sexual intercourse with another man without consent (in force from 03 November 1994).
• The definition of rape was extended by Section 142 Criminal Justice and Public Order Act 1994 to include anal sexual intercourse with a female or male without consent, (in force from 03 November 1994).
• There is no statutory definition of consent under the 1956 Act and it is now commonly accepted that the approach outlined by section 74 Sexual Offences Act 2003 applies when directing the jury.
• The offence attracts a maximum sentence of life imprisonment.

Charging Practice

• Anal rape should be charged as section 1 Rape and not section 12 Buggery from 03 November
• Incidents of anal and vaginal rape should be preferred as separate counts and the nature of the penetration specified in the indictment.
• Where more than one man is alleged to have raped the complainant on the same occasion all offenders should be indicted on the same count with no reference to aiders and abettors.
• Until 20 September 1993 a presumption existed that a boy under the age of 14 was incapable of sexual intercourse . However rape committed prior to this date can be charged as indecent assault following R v Williams [1893] 1 QB 320.
• If a girl aged 13 or over provides apparent consent to sexual intercourse but there is evidence that she has been groomed, the question of whether this amounts to consent in law may arise. Where a complainant fails to understand the full significance of the sexual act, immaturity and acquiescence may be sufficient to prove a lack of consent in law and an offence of Rape contrary to section 1 should be considered. See the judgement in R v Robinson [2011] EWCA Crim 1916.
• A woman can be convicted as an aider and abettor to rape.

Unlawful Sexual Intercourse with a girl under 13

key points to note

• The offence attracts a maximum sentence of life imprisonment.
• The rape of a girl under 13 years should be charged contrary to section 5 Sexual Offences Act 1956 rather than contrary to section 1 SOA 1956. This reflects the fact that a child under 13 years cannot consent to sexual intercourse.

Code for Crown Prosecutors

• Prosecutors should apply the same approach to public interest considerations as for offences under the Sexual Offences Act 2003.
• The public interest requires a prosecution for an offence of unlawful sexual intercourse with a girl under 13 unless exceptional circumstances exist.

Buggery contrary to section 12 Sexual Offences Act 1956

Key points to note

• This offence is only available in limited circumstances
• The offence is available if the act amounted to an assault (i.e it was non-consensual). Non-consensual anal intercourse should be charged as rape for incidents occurring on or after 3^rd November 1994.
• The offence is available regardless of consent if the complainant was under 16 when the offence was committed.
• The minimum age of consent to buggery and certain homosexual acts was reduced from 18 to 16 years in England and Wales on 8 January 2001, Sexual Offences (Amendment) Act 2000. This was not retrospective.
• Acts of buggery involving a 16 or 17 year old complainant taking place between 3 November 1994 and 8th January 2001 are still capable of being prosecuted, however, unless circumstances are exceptional it is unlikely to be in the public interest.
• DPP’s consent, to be read in accordance with section 1(7) Prosecution of Offences Act 1985, is required for proceedings against any male for offences of buggery or for aiding, abetting, counselling, procuring or commanding those offences where either male was under the age of consent.

Code for Crown Prosecutors

For offences where the victim was under 16 years at the material time (or under 18 for offences which occurred before 8^th January 2001) the following Public Interest considerations may apply:

• Where age is the relevant factor, the mischief is the seduction or corruption of the young.
• The relationship between the parties is a relevant consideration.
• Additional Public interest factors
  • The nature of the relationship between the parties,
  • the age of the parties and any gap between them,
  • any breach of trust,
  • any exploitation of position or influence – a stable relationship may indicate an absence of exploitation,
  • whether the offence represents a phase of adolescent sexual exploration,

Indecent assault

• On a woman, contrary to section 14 Sexual Offences Act 1956.
• On a man, contrary to section 15 Sexual Offences Act 1956.

Key Points to note

• A boy or girl under 16 cannot consent to an act which would otherwise be an assault but any such consent by the victim would be relevant when considering the public interest in prosecuting.
• Due to the change in sentencing powers consideration should always be given to specifying the age of a girl or boy in older cases, if under 16.
• Section 2 of the Indecency with Children Act 1960 as amended by section 37 and schedule 2(17) of the Sexual Offences Act 1956, increased the maximum sentence from 2 years to 5 years: "if on a girl under thirteen who is stated to have been so in the indictment".
• In cases where a victim under the age of 16 has consented in fact a defendant is entitled to be acquitted where he held an honest belief that the complainant was 16 or over and he genuinely believed she was consenting R v K [2001] 3 W.L.R. 471
• Section 6 unlawful sexual intercourse in relation to a victim who was under 16 years is subject to a 12 month time limit and is therefore unavailable. It is an abuse of process to charge indecent assault under section 14 to avoid the 12 month time limit R v J [2005]1 A.C.562 HL.

Code for Crown Prosecutors

A boy or girl under the age of 16 years cannot consent to an act which would otherwise be an assault. However, if the victim did in fact consent this would be relevant when considering the public interest in prosecuting.

Key factors when considering the public interest in prosecuting  include:

• The age of the defendant in relation to the victim;
• The emotional maturity of the victim and whether the sexual relationship was entered in to willingly;
• The relationship between the parties;
• Any duty of care or breach of trust;

Section 1 Indecency with Children Act 1960

Key points to note

• Prior to the implementation of the Indecency with Children Act 1960 there was no offence covering a situation where the defendant caused a child to touch him or another in a sexual manner or committed a sexual act in the presence of a child for his (defendant’s) own sexual gratification.
• The 1960 Act provides for the offence of gross indecency with/towards a child or incitement of a child to commit an act of gross indecency with a defendant or another person
• Allowing a young child’s hand to remain on defendant’s penis for five minutes without more amounted to an ‘invitation’ to continue the indecent activity and an ‘act’ for the purposes of the legislation as per R v Speck (1977) 65 Cr App R 161.
• A genuine belief that the complainant was 16 amounts to a defence
• 01 October 1997 the maximum sentence for offence increased from 2 years imprisonment to 10 years imprisonment.
• For offences committed up until 11 January 2001, the acts of indecency had to be committed on a child under the age of 14 years. From 11 January 2001 the section applied to children under the age of 16 years.
• In force from 02/07/1960 until 30/4/2004.
• From 1 May 2004 Section 10 of the Sexual Offences Act 2003 covers this offence.

Charging Practice

There is no defence of mistaken reasonable belief in the age of the complainant.

• Prosecutors must check the indictment is correctly framed in relation to the age of the complainant and the threshold age for the offence, bearing in mind the changes in the legislation.