Sexual Offences Act 2003 (UK)

Product Information

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. Special measures can also be applied for and put in place during court proceedings to make the experience less traumatic for victims and witnesses. Where they are available, measures include:

Section 1 of the Street Offences Act was amended by section 68(7) of the Serious Crime Act 2015 so that the offence of persistently loitering or soliciting in a street or public place for the purposes of offering services as a prostitute applies only to persons aged 18 or over. In so doing, it recognises children as victims in such circumstances. 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).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. There has been a call for change across Parliament and wider society, including the ‘Close the Loophole campaign’ run by the National Society for the Prevention of Cruelty to Children (NSPCC), and the All-Party Parliamentary Group on Safeguarding in Faith Settings report published in 2020, which called for a change in the existing legislation to protect young people. Together with the further positions of trust that have been drafted we are intending to include provisions in the Act to allow additional positions of trust to be added via secondary legislation should that prove necessary. 2. How are we going to do it?

See section 23 for the defence for spouses and civil partners and section 24 for sexual relationships which pre dated the position of trust. 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. Ministry of Justice; Frazer, Lucy (12 February 2019). " 'Upskirting' now a specific crime as bill receives Royal Assent". gov.uk (Press release). Government Digital Service . Retrieved 12 February 2019. The Crown Prosecution Service has a team of specialist prosecutors across England and Wales who are trained to deal with cases featuring sexual allegations. These prosecutors work within a set of carefully drafted guidelines. 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).

Changes to legislation:

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.”

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. Prosecutors should consider the circumstances in which the relationship first arose and how long it has existed.

The prosecutor should specify either that the sexual activity is penetrative or non-penetrative when selecting and drafting charges under this section.