Olliers’ team of specialist lawyers can assist if you are under investigation in relation to sexual allegations involving children.
Child sex offences
There are a number of potential offences that can be considered contrary to the Sexual Offences Act 2003.
The law identifies three categories of offences against children of different ages.
- Offences against those under 13;
- Offences against those under 16;
- Offences against those under 18.
Offences against children under 13
Consent in these offences is irrelevant because a child under 13 does not have the legal capacity to consent to any form of sexual activity.
Offences relating to children under 13 overlap to a very significant extent with the child sex offences which are designed to protect children under 16.
However, the intention behind these offences is that anyone who engages in sexual activity with a child under 13 should be prosecuted with a specific offence to ensure the availability of higher maximum penalties for the under 13 offences and ensure that children under 13 are not required to give evidence in relation to consent.
These are offences of strict liability as to age.
The prosecution has to prove:
- The intentional sexual activity; and
- The age of the complainant at the date of the sexual activity
There is no defence of mistaken reasonable belief in the age of the complainant.
Rape of a child under 13
Section 5 of the SOA 2003 makes it an offence for a person to intentionally penetrate with his penis the vagina, anus or mouth of a child under 13.
This offence carries a maximum sentence of life imprisonment.
Assault of a child under 13 by penetration
Section 6 of the SOA 2003 makes it an offence for a person to intentionally penetrate sexually the vagina or anus of a child under 13 with a part of his body, or with anything else.
The offence carries a maximum sentence of life imprisonment.
Sexual assault of a child under 13
Section 7 of the SOA 2003 makes it an offence for a person to touch a child under 13 sexually.
The offence carries a maximum sentence of 14 years’ imprisonment.
Causing or inciting a child under 13 to engage in sexual activity
Section 8 of the SOA 2003 makes it an offence for a person to intentionally 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
2) non-penetrative sexual activity
The offences cover the situation where sexual activity itself does not take place. The non-penetrative offence carries a maximum sentence of 14 years’ imprisonment. The penetrative offence carries a maximum sentence of life imprisonment.
Offences against children under 16
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.
Reasonable belief as to age
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.
Sections 9 and 10 create two separate offences of penetrative and non-penetrative sexual activity. If penetration is involved the maximum sentence 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.
If there are difficulties proving the non-consensual offence, then an offence under section 9 may be appropriate (where the elements can be proved).
Child sex offences committed by youths
Under 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.
The maximum penalty is reduced to imprisonment to a term not exceeding 5 years.
In deciding whether or not to prosecute offences committed by young people themselves prosecutors the following factors should be considered:
- The age and understanding of the offender e.g. whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led them 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
- Parity between the parties in regard to sexual, physical, emotional and educational development;
- The relationship between the parties
- 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.
Arranging/facilitating child sex offence
Section 14 of the Sexual Offences Act 2003 provides the offence of arranging or facilitating the commission of a child sex offence.
A person commits this offence if:
- they intentionally arrange or facilitate something that they intend to do, intend another person to do, or believes that another person will do, in any part of the world,
- and doing it will involve the commission of an offence under any of sections 9 to 13 of the Sexual Offence Act 2003.
A person guilty of an offence under this section is liable on conviction to up to 14 years’ imprisonment. 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.
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.
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 intention. The proof of an arrangement or facilitation is not dependent on the possibility of carrying it out.
The offence carries a maximum sentence of 14 years on indictment.
Involvement of vigilante groups
It is becoming increasingly common for individuals or groups of individuals who are members of the public to use online activity to uncover or “catch” alleged paedophiles involved in on-line child sexual abuse or interested in meeting children for the purpose of such abuse. The CPS have specific guidance in relation to cases involving vigilante groups.
Sexual communication with a child
An offence is committed where:
- a person aged 18 or over intentionally communicates with a child under 16;
- the adult does not reasonably believe to be 16 or over; and
- he communication is sexual or is intended to encourage the child to make a communication which is sexual.
Click here to read more about sexual communication with a child.
How can Olliers help me?
We have many years of experience of dealing with allegations of a sexual nature and understand that for many individuals this may be their first involvement with the criminal justice system. Being arrested for the first time is a terrifying experience made worse when the allegation is a sexual one. Reputations, relationships and careers are on the line.
We understand how daunting the situation may be for you. We promise not to judge and seek to work together with you to achieve the best outcome. We aim to explain the process and procedures to you in clear and unambiguous language whilst at the same understanding the anxiety you face at the situation ahead.
Olliers take a pro-active approach for individuals who are under investigation for sexual offences and communication with a child offences. Please contact us by telephone on 0161 834 1515, by email to info@olliers.com or complete the form below.
