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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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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,

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           (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

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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.

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     (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

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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

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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.

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 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,

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           (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

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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

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person had a mental disorder or learning disability unless sufficient evidence

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    22

 

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;

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           (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—

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           (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,

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           (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

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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.

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     (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.

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 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—

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           (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.

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     (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,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    23

 

            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

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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

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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;

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                    “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;

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                    “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

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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

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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.

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     (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.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    24

 

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

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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

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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

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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

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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

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           (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,

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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,

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                  (b)                 the Director General of the National Crime Squad,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    25

 

                  (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

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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

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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

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                  (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

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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

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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,

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                    (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

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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

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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

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                    (c)                   may specify conditions to which it is subject.”

 

 

 
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