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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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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.

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     (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—

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           (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.

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     (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.

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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

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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

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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”—

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                  (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;

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                  (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;

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                    “           independent clinic” has—

                  (a)                                                         in relation to England and Wales, the meaning given by section

2 of the Care Standards Act 2000;

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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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

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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

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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

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     (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.

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 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.

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     (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

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 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,

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           (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

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                  (ii)                B is under 13.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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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

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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.

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     (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—

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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.

 28    Inciting a child family member to engage in sexual activity

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     (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,

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           (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

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                  (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.

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     (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

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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

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is liable—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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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

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     (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—

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           (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

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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

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           (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

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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;

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           (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

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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.

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 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.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    16

 

     (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—

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           (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.

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     (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

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 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,

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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—

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           (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.

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     (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—

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           (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.

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