Tim McArdle, Criminal Defence Solicitor at Olliers, advises in relation to the new offence of Sexual Communication with a Child coming into force on 3rd April 2017.
There is no doubt that the new offence of engaging in communication with a child under the age of 16 for the purpose of obtaining sexual gratification will be welcomed by many involved in the Criminal Justice System and beyond.
When is sexual communication with a child deemed an offence?
Sensibly, the new legislation effectively reduces the level of criminality required to commit an offence when an adult is in communication with a child under the age of 16, provided the communication is sexual or intended to encourage a child to make a sexual communication. In general terms, the previous (existing) legislation was such that there must be an incitement to engage in sexual activity or one’s conduct must have amounted to grooming in order to commit an offence.
Cut and dried exchanges of sexual texts, emails or conversations in chat rooms between adult and child, if the age of the child is clear, will almost certainly be deemed criminal and, if exposed or complained of, result in charge.
Reasonable belief regarding age
The situation is less clear when one thinks practically. Having dealt with a number of cases involving the use of ‘teen chat rooms’, it is apparent that the age of the users is not always specified. In such cases the authorities may well have difficulty proving the age of a child was known, or that the adult did not ‘reasonably believe’ the child to be 16 or over’. Despite the Court’s wide interpretation, via caselaw, of ‘sexual gratification’ the position is still not entirely clear. Apparently, it ‘may take any of the myriad forms which sexual pleasure or indulgence may take’ – what does that mean exactly?
Additionally, the provision makes no allowance for the exuberance of youth. The legislation would criminalise the 18 year old sixth former engaged in sexual communication (or flirting) with a 15 year old school leaver. How many of us would be content to see our children face potentially life changes charges as a result? Unfortunately the public interest test in sexual cases seems to be more often left to a jury to decide.
In summary, the legislation is clearly designed to close a loophole which previously required perhaps too much of the Crown to demonstrate communication between adult and child was unlawful. It will be interesting to see how this law develops in the near future.
This new offence is classed as an either-way offence, which means the case can be heard, either in the Magistrates’ Court or the Crown Court. The new offence will carry a maximum custodial sentence of two years and therefore lead to being automatically placed on the Sex Offenders Register.