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24 Positions of trust: interpretation | |
(1) The following provisions apply for the purposes of section 23. | |
(2) Subject to subsection (3), a person looks after persons under 18 if he is regularly | |
involved in caring for, training, supervising or being in sole charge of such | |
persons. | 5 |
(3) A person (A) looks after another person (B) on an individual basis if— | |
(a) A is regularly involved in caring for, training or supervising B, and | |
(b) in the course of his involvement, A regularly has unsupervised contact | |
with B alone (whether face to face or by any other means). | |
(4) A person receives education at an educational institution if— | 10 |
(a) he is registered or otherwise enrolled as a pupil or student at the | |
institution, or | |
(b) he receives education at the institution under arrangements with | |
another educational institution at which he is so registered or otherwise | |
enrolled. | 15 |
(5) In section 23— | |
“authority”— | |
(a) in relation to England and Wales, means a local authority; | |
(b) in relation to Northern Ireland, has the meaning given by | |
Article 2(2) of the Children (Northern Ireland) Order 1995 (S.I. | 20 |
1995/755 (N.I. 2)); | |
“care home” means an establishment which is a care home for the | |
purposes of the Care Standards Act 2000 (c. 14); | |
“children’s home” has— | |
(a) in relation to England and Wales, the meaning given by section | 25 |
1 of the Care Standards Act 2000, and | |
(b) in relation to Northern Ireland, the meaning that would be | |
given by Article 9 of the Health and Personal Social Services | |
(Quality, Improvement and Regulation) (Northern Ireland) | |
Order 2003 (S.I. 2003/431 (N.I. 9)) (“the 2003 Order”) if in | 30 |
paragraph (4) of that Article sub-paragraphs (d), (f) and (g) | |
were omitted; | |
“community home” has the meaning given by section 53 of the Children | |
Act 1989 (c. 41); | |
“hospital”— | 35 |
(a) in relation to England and Wales, means a hospital within the | |
meaning given by section 128(1) of the National Health Service | |
Act 1977 (c. 49), or any other establishment which is a hospital | |
within the meaning given by section 2(3) of the Care Standards | |
Act 2000; | 40 |
(b) in relation to Northern Ireland, means a hospital within the | |
meaning given by Article 2(2) of the Health and Personal Social | |
Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. | |
14)), or any other establishment which is a hospital within the | |
meaning given by Article 2(2) of the 2003 Order; | 45 |
“ independent clinic” has— | |
(a) in relation to England and Wales, the meaning given by section | |
2 of the Care Standards Act 2000; | |
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(b) in relation to Northern Ireland, the meaning given by Article | |
2(2) of the 2003 Order; | |
“private hospital” has the meaning given by Article 90(2) of the Mental | |
Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)); | |
“residential care home” means an establishment which is a residential | 5 |
care home for the purposes of the 2003 Order; | |
“residential family centre” has the meaning given by section 22 of the | |
Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3); | |
“voluntary home” has— | |
(a) in relation to England and Wales, the meaning given by section | 10 |
60(3) of the Children Act 1989 (c. 41), and | |
(b) in relation to Northern Ireland, the meaning given by Article | |
74(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/ | |
755 (N.I. 2)). | |
25 Sections 18 to 21: marriage exception | 15 |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 18 to 21 against another person (B) is not an offence under that section | |
if they are lawfully married at the time. | |
(2) In proceedings for such an offence it is for A to prove that he and B were | |
lawfully married at the time. | 20 |
26 Sections 18 to 21: sexual relationships which pre-date position of trust | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 18 to 21 against another person (B) is not an offence under that section | |
if, immediately before the position of trust arose, a sexual relationship existed | |
between A and B. | 25 |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | |
B would have been unlawful. | |
(3) In proceedings for an offence under any of sections 18 to 21 it is for the | |
defendant to prove that such a relationship existed at that time. | |
Familial child sex offences | 30 |
27 Sexual activity with a child family member | |
(1) A person (A) commits an offence if— | |
(a) he intentionally touches another person (B), | |
(b) the touching is sexual, | |
(c) the relation of A to B is within section 29, | 35 |
(d) A knows or could reasonably be expected to know that his relation to B | |
is of a description falling within that section, and | |
(e) either— | |
(i) B is under 18 and A does not reasonably believe that B is 18 or | |
over, or | 40 |
(ii) B is under 13. | |
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(2) Where in proceedings for an offence under this section it is proved that the | |
other person was under 18, the defendant is to be taken not to have reasonably | |
believed that that person was 18 or over unless sufficient evidence is adduced | |
to raise an issue as to whether he reasonably believed it. | |
(3) Where in proceedings for an offence under this section it is proved that the | 5 |
relation of the defendant to the other person was of a description falling within | |
section 29, it is to be taken that the defendant knew or could reasonably have | |
been expected to know that his relation to the other person was of that | |
description unless sufficient evidence is adduced to raise an issue as to whether | |
he knew or could reasonably have been expected to know that it was. | 10 |
(4) A person guilty of an offence under this section, if aged 18 or over at the time | |
of the offence, is liable on conviction on indictment to imprisonment for a term | |
not exceeding 14 years. | |
(5) Unless subsection (4) applies, a person guilty of an offence under this section | |
is liable— | 15 |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
5 years. | |
28 Inciting a child family member to engage in sexual activity | 20 |
(1) A person (A) commits an offence if— | |
(a) he intentionally incites another person (B) to touch, or allow himself to | |
be touched by, A, | |
(b) the touching is sexual, | |
(c) the relation of A to B is within section 29, | 25 |
(d) A knows or could reasonably be expected to know that his relation to B | |
is of a description falling within that section, and | |
(e) either— | |
(i) B is under 18 and A does not reasonably believe that B is 18 or | |
over, or | 30 |
(ii) B is under 13. | |
(2) Where in proceedings for an offence under this section it is proved that the | |
other person was under 18, the defendant is to be taken not to have reasonably | |
believed that that person was 18 or over unless sufficient evidence is adduced | |
to raise an issue as to whether he reasonably believed it. | 35 |
(3) Where in proceedings for an offence under this section it is proved that the | |
relation of the defendant to the other person was of a description falling within | |
section 29, it is to be taken that the defendant knew or could reasonably have | |
been expected to know that his relation to the other person was of that | |
description unless sufficient evidence is adduced to raise an issue as to whether | 40 |
he knew or could reasonably have been expected to know that it was. | |
(4) A person guilty of an offence under this section, if he was aged 18 or over at the | |
time of the offence, is liable on conviction on indictment to imprisonment for a | |
term not exceeding 14 years. | |
(5) Unless subsection (4) applies, a person guilty of an offence under this section | 45 |
is liable— | |
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(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
5 years. | |
29 Family relationships | 5 |
(1) The relation of one person (A) to another (B) is within this section if— | |
(a) it is within any of subsections (2) to (4), or | |
(b) it would be within one of those subsections but for section 67 of the | |
Adoption and Children Act 2002 (c. 38) (status conferred by adoption). | |
(2) The relation of A to B is within this subsection if— | 10 |
(a) one of them is the other’s parent, grandparent, brother, sister, half- | |
brother, half-sister, aunt or uncle, | |
(b) one of them is or has been the other’s step-parent, or | |
(c) A is or has been B’s foster parent. | |
(3) The relation of A to B is within this subsection if A and B live or have lived in | 15 |
the same household, or A is or has been regularly involved in caring for, | |
training, supervising or being in sole charge of B, and— | |
(a) one of them is or has been the partner of the other’s parent, | |
(b) A and B are cousins, | |
(c) one of them is or has been the other’s stepbrother or stepsister, or | 20 |
(d) the parent or present or former foster parent of one of them is or has | |
been the other’s foster parent. | |
(4) The relation of A to B is within this subsection if— | |
(a) A and B live in the same household, and | |
(b) A is regularly involved in caring for, training, supervising or being in | 25 |
sole charge of B. | |
(5) For the purposes of this section— | |
(a) “aunt” means the sister or half-sister of a person’s parent, and “uncle” | |
has a corresponding meaning; | |
(b) “cousin” means the child of an aunt or uncle; | 30 |
(c) a person is a child’s foster parent if— | |
(i) he is a person with whom the child has been placed under | |
sections 23(2)(a) or 59(1)(a) of the Children Act 1989 (c. 41) | |
(fostering for local authority or voluntary organisation), or | |
(ii) he fosters the child privately, within the meaning given by | 35 |
section 66(1)(b) of that Act; | |
(d) a person is another’s partner (whether they are of different sexes or the | |
same sex) if they live together as partners in an enduring family | |
relationship; | |
(e) “stepbrother” and “stepsister” include the child of a parent’s partner. | 40 |
30 Sections 27 and 28: marriage exception | |
(1) Conduct by a person (A) which would otherwise be an offence under section | |
27 or 28 against another person (B) is not an offence under that section if they | |
are lawfully married at the time. | |
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(2) In proceedings for such an offence it is for A to prove that he and B were | |
lawfully married at the time. | |
31 Sections 27 and 28: sexual relationships which pre-date family relationships | |
(1) Conduct by a person (A) which would otherwise be an offence under section | |
27 or 28 against another person (B) is not an offence under that section if— | 5 |
(a) the relation of A to B is not within subsection (2) of section 29, | |
(b) it would not be within that subsection if section 67 of the Adoption and | |
Children Act 2002 (c. 38) did not apply, and | |
(c) immediately before the relation of A to B first became such as to fall | |
within section 29, a sexual relationship existed between A and B. | 10 |
(2) Subsection (1) does not apply if at the time referred to in subsection (1)(c) | |
sexual intercourse between A and B would have been unlawful. | |
(3) In proceedings for an offence under section 27 or 28 it is for the defendant to | |
prove the matters mentioned in subsection (1)(a) to (c). | |
Offences against persons with a mental disorder or learning disability | 15 |
32 Sexual activity with a person with a mental disorder or learning disability | |
(1) A person (A) commits an offence if— | |
(a) he intentionally touches another person (B), | |
(b) the touching is sexual, | |
(c) B is unable to refuse because of a mental disorder or learning disability, | 20 |
and | |
(d) A knows or could reasonably be expected to know that B has a mental | |
disorder or learning disability and that because of it B is likely to be | |
unable to refuse. | |
(2) B is unable to refuse if— | 25 |
(a) he lacks the capacity to choose whether to agree to the touching | |
(whether because he lacks sufficient understanding of the nature or | |
possible consequences of what is being done, or for any other reason), | |
or | |
(b) he is unable to communicate such a choice to A. | 30 |
(3) A person guilty of an offence under this section is liable, on conviction on | |
indictment— | |
(a) where subsection (4) applies, to imprisonment for life; | |
(b) in any other case, to imprisonment for a term not exceeding 14 years. | |
(4) This subsection applies if the touching involved— | 35 |
(a) penetration of B’s anus or vagina with a part of A’s body or anything | |
else, | |
(b) penetration of B’s mouth with A’s penis, | |
(c) penetration of A’s anus or vagina with a part of B’s body, or | |
(d) penetration of A’s mouth with B’s penis. | 40 |
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