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41 Care workers: causing or inciting sexual activity | |
(1) A person (A) commits an offence if— | |
(a) he intentionally causes or incites another person (B) to engage in an | |
activity, | |
(b) the activity is sexual, | 5 |
(c) B has a mental disorder or learning disability, | |
(d) A knows or could reasonably be expected to know that B has a mental | |
disorder or learning disability, and | |
(e) A is involved in B’s care in a way that falls within section 44. | |
(2) Where in proceedings for an offence under this section it is proved that the | 10 |
other person had a mental disorder or learning disability, it is to be taken that | |
the defendant knew or could reasonably have been expected to know that that | |
person had a mental disorder or learning disability unless sufficient evidence | |
is adduced to raise an issue as to whether he knew or could reasonably have | |
been expected to know it. | 15 |
(3) A person guilty of an offence under this section, if the activity caused or incited | |
involved— | |
(a) penetration of B’s anus or vagina, | |
(b) penetration of B’s mouth with a person’s penis, | |
(c) penetration of a person’s anus or vagina with a part of B’s body or by | 20 |
B with anything else, or | |
(d) penetration of a person’s mouth with B’s penis, | |
is liable, on conviction on indictment, to imprisonment for a term not | |
exceeding 14 years. | |
(4) Unless subsection (3) applies, a person guilty of an offence under this section | 25 |
is liable— | |
(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 | |
10 years. | 30 |
42 Care workers: sexual activity in the presence of a person with a mental | |
disorder or learning disability | |
(1) A person (A) commits an offence if— | |
(a) he intentionally engages in an activity, | |
(b) the activity is sexual, | 35 |
(c) for the purpose of obtaining sexual gratification, he engages in it in the | |
presence of another person (B), knowing or believing that B is aware, or | |
intending that B should be aware, that he is engaging in it, | |
(d) B has a mental disorder or learning disability, | |
(e) A knows or could reasonably be expected to know that B has a mental | 40 |
disorder or learning disability, and | |
(f) A is involved in B’s care in a way that falls within section 44. | |
(2) Where in proceedings for an offence under this section it is proved that the | |
other person had a mental disorder or learning disability, it is to be taken that | |
the defendant knew or could reasonably have been expected to know that that | 45 |
person had a mental disorder or learning disability unless sufficient evidence | |
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is adduced to raise an issue as to whether he knew or could reasonably have | |
been expected to know it. | |
(3) A person guilty of an offence under this section is liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | 5 |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
7 years. | |
43 Care workers: causing a person with a mental disorder or learning disability | |
to watch a sexual act | |
(1) A person (A) commits an offence if— | 10 |
(a) for the purpose of obtaining sexual gratification, he intentionally causes | |
another person (B) to watch a third person engaging in an activity, or to | |
look at a photograph or pseudo-photograph of any person engaging in | |
an activity, | |
(b) the activity is sexual, | 15 |
(c) B has a mental disorder or learning disability, | |
(d) A knows or could reasonably be expected to know that B has a mental | |
disorder or learning disability, and | |
(e) A is involved in B’s care in a way that falls within section 44. | |
(2) Where in proceedings for an offence under this section it is proved that the | 20 |
other person had a mental disorder or learning disability, it is to be taken that | |
the defendant knew or could reasonably have been expected to know that that | |
person had a mental disorder or learning disability unless sufficient evidence | |
is adduced to raise an issue as to whether he knew or could reasonably have | |
been expected to know it. | 25 |
(3) A person guilty of an offence under this section is liable— | |
(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 | |
7 years. | 30 |
44 Care workers: interpretation | |
(1) For the purposes of sections 40 to 43, a person (A) is involved in the care of | |
another person (B) in a way that falls within this section if any of subsections | |
(2) to (4) applies. | |
(2) This subsection applies if— | 35 |
(a) B is accommodated and cared for in a care home, community home, | |
voluntary home or children’s home, and | |
(b) A has functions to perform in the home in the course of employment | |
which have brought him or are likely to bring him into regular face to | |
face contact with B. | 40 |
(3) This subsection applies if B is a patient for whom services are provided— | |
(a) by a National Health Service body or an independent medical agency, | |
or | |
(b) in an independent clinic or an independent hospital, | |
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and A has functions to perform for the body or agency or in the clinic or | |
hospital in the course of employment which have brought him or are likely to | |
bring him into regular face to face contact with B. | |
(4) This subsection applies if A— | |
(a) is, whether or not in the course of employment, a provider of care, | 5 |
assistance or services to B in connection with B’s mental disorder or | |
learning disability, and | |
(b) as such, has had or is likely to have regular face to face contact with B. | |
(5) In this section— | |
“care home” means an establishment which is a care home for the | 10 |
purposes of the Care Standards Act 2000 (c. 14); | |
“children’s home” has the meaning given by section 1 of that Act; | |
“community home” has the meaning given by section 53 of the Children | |
Act 1989 (c. 41); | |
“employment” means any employment, whether paid or unpaid and | 15 |
whether under a contract of service or apprenticeship, under a contract | |
for services, or otherwise than under a contract; | |
“independent clinic”, “independent hospital” and “independent medical | |
agency” have the meaning given by section 2 of the Care Standards Act | |
2000; | 20 |
“National Health Service body” means— | |
(a) a Health Authority, | |
(b) a National Health Service trust, | |
(c) a Primary Care Trust, or | |
(d) a Special Health Authority; | 25 |
“voluntary home” has the meaning given by section 60(3) of the Children | |
Act 1989. | |
45 Sections 40 to 43: marriage exception | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 40 to 43 against another person (B) is not an offence under that section | 30 |
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. | |
46 Sections 40 to 43: sexual relationships which pre-date care relationships | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | 35 |
sections 40 to 43 against another person (B) is not an offence under that section | |
if, immediately before A became involved in B’s care in a way that falls within | |
section 44, a sexual relationship existed between A and B. | |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | |
B would have been unlawful. | 40 |
(3) In proceedings for an offence under any of sections 40 to 43 it is for the | |
defendant to prove that such a relationship existed at that time. | |
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Indecent photographs of children | |
47 Indecent photographs of persons aged 16 or 17 | |
(1) The Protection of Children Act 1978 (c. 37) (which makes provision about | |
indecent photographs of persons under 16) is amended as follows. | |
(2) In section 2(3) (evidence) and section 7(6) (meaning of “child”), for “16” | 5 |
substitute “18”. | |
(3) After section 1 insert— | |
“1A Exceptions where a child aged 16 or over consents | |
(1) It is not an offence under section 1(1)(a) for a person to take or make an | |
indecent photograph of a child aged 16 or over with the consent of the | 10 |
child. | |
(2) It is not an offence under section 1(1)(a) for one person to permit | |
another to take, with the consent of a child aged 16 or over, an indecent | |
photograph of that child. | |
(3) Where a person takes or makes an indecent photograph of a child aged | 15 |
16 or over with the consent of the child, it is not an offence— | |
(a) under section 1(1)(b), for him to distribute or show the | |
photograph to the child, or | |
(b) under section 1(1)(c), for him to have the photograph in his | |
possession with the child’s consent with a view to its being | 20 |
distributed or shown by him only to the child.” | |
(4) In section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent | |
photograph of child), after subsection (1) insert— | |
“(1A) Where a person takes or makes an indecent photograph of a child aged | |
16 or over with the consent of the child, it is not an offence under | 25 |
subsection (1) above for him to have the photograph in his possession | |
with the child’s consent.” | |
48 Criminal investigations or proceedings | |
(1) After section 1A of the Protection of Children Act 1978 insert— | |
“1B Exception for criminal investigations or proceedings | 30 |
(1) It is not an offence under section 1(1)(a) for a person to make an | |
indecent photograph or pseudo-photograph of a child in accordance | |
with an authorisation under this section. | |
(2) An authorisation may be given by a person within subsection (3) if it | |
appears to that person necessary for the purposes of the prevention, | 35 |
detection or investigation of crime, or for the purposes of criminal | |
proceedings, in any part of the world, or for any particular purpose | |
falling within those purposes. | |
(3) Those persons are— | |
(a) a chief officer of police, | 40 |
(b) the Director General of the National Crime Squad, | |
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(c) the Director General of the National Criminal Intelligence | |
Service, | |
(d) the Commissioners of Customs and Excise, and | |
(e) the Director of Public Prosecutions. | |
(4) An authorisation may be given by the Director-General of the Security | 5 |
Service if it appears to him necessary for the exercise of any of the | |
functions of the Service. | |
(5) An authorisation may be given by the Director of GCHQ if it appears | |
to him necessary for the exercise of any of the functions of GCHQ (and | |
in this subsection “GCHQ” has the same meaning as in the Intelligence | 10 |
Services Act 1994 (c. 13)). | |
(6) An authorisation— | |
(a) must be in writing, | |
(b) must specify the person to whom it is given and the purpose for | |
which it is given, and | 15 |
(c) may specify conditions to which it is subject.” | |
(2) After Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. | |
1978/1047 (N.I. 17)) insert— | |
“Exception for criminal investigations or proceedings | |
3A. (1) It is not an offence under Article 3(1)(a) for a person to make an | 20 |
indecent photograph or pseudo-photograph of a child in accordance | |
with an authorisation under this section. | |
(2) An authorisation may be given by a person within paragraph (3) if it | |
appears to that person necessary for the purposes of the prevention, | |
detection or investigation of crime, or for the purposes of criminal | 25 |
proceedings, in any part of the world, or for any particular purpose | |
falling within those purposes. | |
(3) Those persons are— | |
(a) the Chief Constable of the Police Service of Northern Ireland, | |
(b) the Director General of the National Crime Squad, | 30 |
(c) the Director General of the National Crime Intelligence | |
Service, | |
(d) the Commissioners of Customs and Excise, and | |
(e) the Director of Public Prosecutions. | |
(4) An authorisation may be given by the Director-General of the | 35 |
Security Service if it appears to him necessary for the exercise of any | |
of the functions of the Service. | |
(5) An authorisation may be given by the Director of GCHQ if it appears | |
to him necessary for the exercise of any of the functions of GCHQ | |
(and in this paragraph “GCHQ” has the same meaning as in the | 40 |
Intelligence Services Act 1994). | |
(6) An authorisation— | |
(a) must be in writing, | |
(b) must specify the person to whom it is given and the purpose | |
for which it is given, and | 45 |
(c) may specify conditions to which it is subject.” | |
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