‘Sexual offences on children explained’

Sex offences are crimes that are covered by the Sexual Offences Act 2003

Child sexual abuse or child molestation is legally shaped in many forms. Child sexual abuse is an act/s in which an adult or older adolescent uses a child for sexual stimulation and or exploitation. 

The following offences are created for England and Wales by the Sexual Offences Act 2003:

  • Rape 

  • Assault by penetration

  • Indecent assault

  • Sexual assault 

  • Buggery

  • gross indecency with a child

  • Causing a person to engage in sexual activity without consent 

  • Rape of a child under 13 

  • Assault of a child under 13 by penetration 

  • Sexual assault of a child under 13 

  • Causing or inciting a child under 13 to engage in sexual activity 

  • Sexual activity with a child 

  • Causing or inciting a child to engage in sexual activity 

  • Engaging in sexual activity in the presence of a child 

  • Causing a child to watch a sexual act 

  • Child sex offences committed by children or young persons 

  • Arranging or facilitating the commission of a child sex offence 

  • Meeting a child following sexual grooming etc. 

  • Abuse of position of trust: sexual activity with a child

  • Abuse of position of trust: causing or inciting a child to engage in sexual activity 

  • Abuse of position of trust: sexual activity in the presence of a child

  • Abuse of position of trust: causing a child to watch a sexual act 

  • Sexual activity with a child family member 

  • Inciting a child family member to engage in sexual activity 

  • Paying for sexual services of a child 

  • Causing or inciting child prostitution or pornography 

  • Controlling a child prostitute or a child involved in pornography 

  • Arranging or facilitating child prostitution or pornography 

  • Trafficking into the UK for sexual exploitation – children

  • Administering a substance with intent 

  • Committing an offence with intent to commit a sexual offence

  • Trespass with intent to commit a sexual offence 

  • Sex with an child relative: penetration 

  • Sex with an child relative: consenting to penetration 

  • Sexual contact with child relative

  • Exposure

  • Voyeurism 

Here we explain what contributes to the various charges an offender can face

Rape and Consent

Rape includes penetration of the mouth as well as penetration of the vagina or anus by the penis.

The new measures of consent are designed to redress the balance in favour of victims without prejudicing the defendant’s right to a fair trial, to help juries reach just and fair decisions on this difficult area of criminal law:

  • Consent is defined by law as: a person consents if he or she agrees by choice to the sexual activity and has the freedom and capacity to make that choice.

  • All the circumstances at the time of the offence will be looked at in deciding whether the defendant is reasonable in believing the complainant consented.

  • People will be considered most unlikely to have agreed to sexual activity if they were subject to threats or fear of serious harm, unconscious, drugged, abducted, or were unable to communicate because of a physical disability.

Rape of child under 13

Those accused of child rape of a child under 13 years can no longer argue that the child consented. Any sexual intercourse with a child under 13 where penetration has occurred will be treated as rape. Again rape includes penetration of the mouth as well as penetration of the vagina or anus by the penis. 

List below are the various sentencing guidelines – Rape of all ages included

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Only multiple murder, child murder and repeat offending murderers ‘qualify’ for the “life means life” sentence under UK law

Crimes where whole life order are recommended

  • murder of two or more persons, where each murder involves any of the following :child murder if involving the abduction of the child or sexual or sadistic motivation,

    • a substantial degree of premeditation or planning,

    • the abduction of the victim, or

    • sexual or sadistic conduct,

  • murder done for the purpose of advancing a political, religious or ideological cause,

  • murder by an offender previously convicted of murder,

  • other offence if the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high. For example, high treason can warrant such a sentence, if it is grave enough.

Buggery

The British English term buggery is very close in meaning to the term sodomy, and is often used interchangeably in law and popular speech. It may also be a specific common law offence, encompassing both sodomy and bestiality. Anal or oral intercourse between human beings, or any sexual relations between a human being and an animal. 

Over the years the courts have defined buggery as including either:

  1. anal intercourse by a man with a man or woman or

  2. vaginal intercourse by either a man or a woman with an animal

In the UK the punishment for buggery was reduced from hanging to life imprisonment with a ‘tariff’ by the Offences against the Person Act 1861. As with the crime of rape, buggery required that penetration must have occurred, but ejaculation is not necessary

Sexual assault by penetration 

This offence involves penetration of the vagina or anus only, with objects or body
parts. 

All the non-consensual offences involve a high level of culpability on the part of the
offender, since that person will have acted either deliberately without the victim’s consent or without giving due care to whether the victim was able to or did, in fact, consent

Digital penetration can be used as a legal term and refers to an offender using his/her fingers or toes to penetrate either the vagina or anus of the victim

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Sexual touching/Sexual assault

The offence of ‘sexual assault’ covers all forms of sexual touching and will largely be used in relation to the lesser forms of assault that would have previously fallen at the lower end of the penalty scale.

The exact nature of the sexual activity should be the key factor in assessing the seriousness of a sexual assault and should be used as the starting point from which to begin the process of assessing the overall seriousness of the offending behaviour.

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CAUSING OR INCITING SEXUAL ACTIVITY

There are three offences in this category covering a wide range of sexual activity:

• Causing a person to engage in sexual activity without consent
• Causing or inciting a child under 13 to engage in sexual activity
• Causing or inciting a person with a mental disorder impeding choice to engage in

sexual activity

The maximum penalty for the second and third of these offences is the same whether the sexual activity is caused or incited. This recognises that, with vulnerable victims, incitement to indulge in sexual activity is, of itself, likely to result in harm

The offence of ‘causing a person to engage in sexual activity without consent’ covers situations where, for example, a victim is forced to carry out a sexual act involving his or her own person, such as self-masturbation, or to engage in sexual activity with a third party, or situations in which the victim is forced to engage in sexual activity with the offender.

The two main factors determining the seriousness of an offence of causing or inciting sexual activity without consent will be the nature of the sexual activity (as an indication of the degree of harm caused, or likely to be caused, to the victim) and the level of the offender’s culpability. Culpability will be higher if the victim is forced to engage in sexual activity with the offender, or with another victim, than in cases where there is no sexual contact between the victim and the offender or anyone else. In all cases, the degree of force or coercion used by the offender will be an indication of the offender’s level of culpability and may also exacerbate the harm suffered by the victim.

If the activity does not take place because the offender desists of his or her own
accord, culpability (and sometimes harm) will be reduced. This should be treated as a mitigating factor for sentencing purposes and does not affect the principle that starting points for ‘causing’ or ‘inciting’ an activity should be the same.

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Other non-consensual offences

Four other offences fall within the general category of non-consensual offences:

• Engaging in sexual activity in the presence of a child
• Engaging in sexual activity in the presence of a person with a mental disorder

• Causing a child to watch a sexual act
• Causing a person with a mental disorder impeding choice to watch a sexual act

These are offences that relate to lesser forms of sexual offending behaviour than offences that involve physical touching of the victim, but they nevertheless attract maximum penalties of up to 10 years’ imprisonment in recognition of the fact that the victims are particularly vulnerable.

These offences involve intentionally, and for the purpose of obtaining sexual gratification, engaging in sexual activity in the presence of a person under 16, or a person with a mental disorder, knowing or believing that person to be aware of the activity

These offences can cover a very wide range of sexual activity and an equally wide range of circumstances in which a victim is subjected to witnessing it, which is common with for example; webcam sexual activity in the presence of a child

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Causing or inciting another person to watch a sexual act

This slightly different from the last offence as these offences include intentionally causing or inciting, for the purpose of sexual gratification, a person under 16, or a person with a mental disorder, to watch sexual activity or look at a photograph or pseudo-photograph of sexual activity.

In this we mean showing the child a pornographic/indecent movie or image

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Offences involving children

(1) ‘child sex offences’ (covering unlawful sexual activity with children under 16) including ‘arranging or facilitating the commission of a child sex offence’;

(2) ‘familial child sex offences’ (relating to offences committed by members of the child’s family or household and primarily intended to ensure that charges can be brought in relation to victims aged 16 or 17); and

(3) ‘abuse of a position of trust’ (another offence that enables the prosecution of sexual activity involving victims aged 16 or 17, in this case where the offender has a relationship of trust with the child, such as that of a teacher or care worker).

Abuse of a position of trust

These offences criminalise sexual activity by adults over 18 with children under 18 in situations where the adults are looking after the children in educational establishments or in various residential settings, or where their duties involve them in the regular unsupervised contact of children in the community

Familial child sex offences

The culpability of the offender will be the primary indicator of offence seriousness, and the nature of the sexual activity will provide a guide as to the seriousness of the harm caused to the victim. Other factors will include:

• the age and degree of vulnerability of the victim 
• the age gap between the child and the offender

The starting points for sentencing for the familial child sex offences should be
between 25% and 50% higher than those for the generic child sex offences in all cases where the victim is aged 13 or over but under 16; the closer the familial relationship, using the statutory definitions as a guide, the higher the increase that should be applied.

Arranging a child sex offence

Intentionally arranging or facilitating the commission of a child sex offence by the defendant or another person, anywhere in the world

Maximum penalty: 14 years

Sexual grooming

The seriousness of the intended offence (which will affect both the offender’s culpability and the degree of risk to which the victim has been exposed);

• the degree to which the offence was planned;
• the sophistication of the grooming;
• the determination of the offender;
• how close the offender came to success;
• the reason why the offender did not succeed, i.e. whether it was a change of mind or whether someone or something prevented the offender from continuing;
• any physical or psychological injury suffered by the victim.

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Meeting a child following sexual grooming: An offender aged 18 or over meeting, or travelling to meet, a child under 16 (having met or communicated with the child on at least two previous occasions) with the intention of committing a sexual offence against the child

Maximum penalty: 10 years

Administering a substance with intent

Administering a substance, without the consent of the victim, with the intention of overpowering or stupefying the victim in order to enable any person to engage in sexual activity involving the victim

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INDECENT PHOTOGRAPHS OF CHILDREN

Indecent images of children refers to images or films (also known as child abuse images) and in some cases, writings depicting sexually explicit activities involving a child. Abuse of the child occurs during the sexual acts which are recorded in the production

In looking at the nature of the material the Sentencing Council has categorised such material into five levels of seriousness with level five being the most serious.

levels

The age of the child is now an aggravating factor and police officers should be encouraged to ensure that images are divided not only according to the categories set out above, but also as to whether the child is under 13 years, or 13 – 15 years and 16 – 17 years old.

When dealing with cases involving thousands of images police officers have approached the CPS in order to determine at what point they can stop looking at images. It is a matter for the police to decide how many images to view. If the police decide not to view all the images that is a risk analysis only they are able to take. There is of course always the danger that if only 100,000 images out of 500,000 are viewed that image 100,001 may show the suspect abusing a child.

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Paying for sexual services of a child

The offence of ‘paying for sexual services of a child’ is the only offence in this group that involves actual physical sexual activity between an offender and a victim.

Paying for sexual services of a child (section 47): Intentionally obtaining the sexual services of a child having made or promised payment or knowing that another person has made or promised payment

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Child prostitution and causing a child to appear in abuse images/movies

Three offences fall within this group:

1. Causing or inciting child prostitution or pornography (section 48): Intentionally causing or inciting a child to become a prostitute, or to be involved in pornography, anywhere in the world

2. Controlling a child prostitute or a child involved in pornography (section 49): Intentionally controlling any of the activities of a child under 18 where those activities relate to child’s prostitution, or involvement in pornography, anywhere in the world

3. Arranging or facilitating child prostitution or pornography (section 50): Intentionally arranging or facilitating the prostitution of a child, or the child’s involvement in pornography, anywhere in the world

Financial reward may not always be a factor in someone’s involvement in these offences. Thus the offences cover anyone who takes part in any way, for whatever reason, in a child’s involvement in prostitution or pornography. However, most offenders will stand to gain in some way from their involvement, and sentencing starting points need to be relatively high, in line with established principles about the serious nature of commercial exploitation.

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Exposure

These offences are sometimes more serious than they may, at first, appear. Although there is no physical contact with the victim, the offence may cause serious alarm or distress, especially when the offender behaves aggressively or uses obscenities.

Aggravating

  • Threats to prevent the victim reporting an offence

  • Intimidating behaviour/ threats of violence

  • Victim is a child

  • On Indictment – maximum is 2 years, but re-offenders will receive a larger sentence

Voyeurism

The offence of voyeurism covers cases where someone who has a reasonable expectation of privacy is secretly observed. The offence may be committed in a number of ways:

  • by direct observation on the part of the offender;

  • by operating equipment with the intention of enabling someone else to observe the victim;

  • by recording someone doing a private act, with the intention that the recorded image will be viewed by the offender or another person; or

  • by installing equipment or constructing or adapting a structure with the intention of enabling the offender or another person to observe a private act.

The harm inherent in this offence is intrusion of the victim’s privacy. Whilst less serious than non-consensual touching, it may nevertheless cause severe distress, embarrassment or humiliation to the victim, especially in cases where a private act is not simply observed by one person, but where an image of it is disseminated for wider viewing. A higher sentencing starting point is recommended for cases where the offender records and shares images with others.

For offences involving the lowest level of offending behaviour, i.e. spying on someone for private pleasure, a non-custodial sentence is recommended as the starting point.

Intercourse with an animal

This replaces the previous offence of ‘buggery’ with an animal, for which the maximum penalty was life imprisonment. The maximum penalty of 2 years’ imprisonment attached to this offence is sufficient to recognise an offender’s predisposition towards unnatural sexual activity.

Intercourse with an animal (section 69): Intentionally penetrating a live animal’s anus or vagina with the offender’s penis; or intentionally causing or allowing a person’s anus or vagina to be penetrated by the penis of a live animal

Sexual penetration of a corpse

Necrophilia is associated with ‘other very deviant behaviour’, and killers who use the bodies of their victims for sexual gratification cannot, under the existing law, be formally recognised as, or treated as, sexual offenders.

Sexual penetration of a corpse (section 70): Intentional sexual penetration of part of the body of a dead person with a part of the offender’s body or an object

A pre-sentence report (and in some cases a psychiatric report), which can identify sexually deviant tendencies, will be extremely helpful in determining the most appropriate disposal. It will also help determine whether an offender would benefit from participation in a programme designed to help them address those tendencies.

Maximum penalty: 2 years

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