Clause 29: Family relationships

     28.     Clause 29 lists the relationships relevant for the purposes of clauses 27 and 28. Section 67 of the Adoption and Children Act 2002 provides that an adoptive child is the child of the adoptive parents and not the biological parents. Adoptive relationships are therefore covered by subsection (1)(a). The categories at subsections (2) to (4) also apply (by virtue of subsection (1)(b)) to the adoptive child's biological family relationships. These relationships fall into three categories: The first category of relationships is listed in subsection (2). Persons within this category will always be family members for the purposes of clauses 27 and 28. Definitions of the relationships are at subsection (5)(a) to (c). Even where there is no blood relationship and the relationship can therefore cease - in the cases of stepparents, stepchildren and foster parents - this offence may be committed for as long as the victim is under 18. So for example even where A is no longer the child's foster parent, A will commit an offence by having sex with the child while the child is under 18. The second category of relationships is listed in subsection (3). Persons in this category will only be family members for the purposes of clauses 27 and 28 if A lives, or has lived, in the same household as the child or is, or has been, regularly involved in caring for, training or supervising or being in sole charge of the child. Subsection (3)(d) relates to foster-siblings. The definition of "partner" is at subsection (5)(d) and the definition of "stepbrother" and "stepsister" is at subsection (5)(e). An example within this category is a person who lives or has lived in the same house as his first cousin who is under 18. If the cousins had never lived in the same household, A would not commit this offence. As with the first category, if the relationship ceases (for example A ceases to be the partner of the child's mother), the offence may still be committed while the child is under 18. An example of the third category of relationships (at subsection (4)) would be where a child is living in the same household as the au pair who looks after him. Unlike with the first two categories, if the au pair were to leave the household and/or cease to have responsibility for the child, then the relationship would no longer be relevant for the purposes of clause 27 or 28.

Clause 30: Sections 27 and 28: marriage exception

     29.     This clause provides A with a defence to the offences under clauses 27 and 28 if he can prove that at the time of the act he was lawfully married to the child.

Clause 31: Sections 27 and 28: sexual relationships which pre-date family relationships

     30.     This clause provides A with a defence to the offences under clauses 27 and 28 if he can prove that his sexual relationship with the child pre-dated the start of the familial relationship as defined in clause 29. Thus, for example, where two divorced people meet because their respective 16 and 17 year old children are engaged in a sexual relationship and the parents decide to marry, if all four persons were to move into the same household the criminal law would not interfere in the ongoing sexual relationship between the children, even though they would otherwise have been brought within the scope of the offence. This does not apply where A and the child are related as set out in clause 29(2) (whether by blood or adoption). The effect of subsection (2) is to limit this to the situation where the sexual relationship was lawful so it would not cover for example a relationship with a child of under 16.

Clause 32: Sexual activity with a person with a mental disorder or learning disability

Clause 34: Causing or inciting a person with a mental disorder or learning disability to engage in sexual activity

Clause 34: Engaging in sexual activity in the presence of a person with a mental disorder or learning disability

Clause 35: Causing a person with a mental disorder or learning disability to watch a sexual act

31.     All the offences in these clauses are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder or learning disability and because of that does not have the capacity to consent to the sexual activity. The definition of mental disorder is at clause 80(4); the definition of sexual activity is at clause 79. The clauses refer to B's lack of capacity to consent as B being "unable to refuse", and subsection (2) of each clause contains a definition of what is meant by B being unable to refuse. The offences are divided according to the different types of sexual activity (the types of sexual activity covered are the same as for the child sex offences (clauses 10 to 13). Clause 32 covers touching, which is defined at clause 80(6) to include any type of physical contact including penetration. Clause 33 covers the situation where A causes or incites B to engage in sexual activity, for example, where A causes B to have sexual intercourse with A's friend. The Clause also covers where A incites B to engage in sexual activity. and in this case A commits an offence even if the incitement does not result in B engaging in sexual activity. Clause 34 covers the situation where A engages in sexual activity in the presence of B, for example, where A has sexual intercourse in the presence of B, for the purpose of obtaining sexual gratification. The offence is only committed, however, where A knows or believes that B is aware of the sexual activity or intends him to be aware of it. B might be aware of the sexual activity because he is watching it at A's behest or because A is describing what he is doing to B. Clause 35 covers the situation where A causes B to watch a third person engaging in sexual activity or to look at a photograph or pseudo-photograph of a person engaging in sexual activity for A's sexual gratification. Photograph and pseudo-photograph are defined by reference to the Protection of Children Act 1978 (clause 80(5)).

Clause 36: Inducement, threat or deception to procure sexual activity with a person with a mental disorder or learning disability

Clause 37: Causing a person with a mental disorder or learning disability to engage in or to agree to engage in sexual activity by inducement, threat or deception

Clause 38: Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder or learning disability

Clause 39: Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception

     32.     Like the previous set of clauses, the offences in these clauses are concerned with the situation where a person (A) involves another person (B) in sexual activity where the B has a mental disorder or learning disability. However, for these offences, there is no need to prove that B lacks the capacity to consent. Instead, the offences address the situation where A uses inducements, threats or deceptions to obtain B's agreement to the sexual activity. The definition of mental disorder is at clause 80(4); the definition of sexual activity is at clause 79. An inducement might be A promising B presents of anything from sweets to a holiday; a threat might be A stating that he will hurt a member of B's family; and a deception might be A stating that B will get into trouble if he does not engage in sexual activity, or persuading him that it is expected that friends should engage in sexual activity. The division of the clauses according to the type of sexual activity involved is similar to that in the previous set of clauses.

Clause 40: Care workers: sexual activity with a person with a mental disorder or learning disability

Clause 41: Care workers: causing or inciting sexual activity

Clause 42: Care workers: sexual activity in the presence of a person with a mental disorder or learning disability

Clause 43: Care workers: causing a person with a mental disorder or learning disability to watch a sexual act

     33.     Like the previous two sets of clauses, the offences in these clauses are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder or learning disability. The difference here is that A and B must be in a relationship of care. There is no need to prove that B did not have the capacity to consent. The definition of mental disorder is at clause 80(4); the definition of sexual activity is at clause 79. The relationships of care that are covered by these offences are set out at clause 44. The clauses are divided according to the different types of sexual activity involved. The division is the same as for clauses 32 to 35 and what is said in the notes for those clauses about the different types of sexual activity covered applies here too. The prosecution must prove, in addition to the other requirements, that the defendant knew or could reasonably have been expected to know that B had a mental disorder or learning disability. Subsection (2) of each clause puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of B's mental disorder or learning disability, it is presumed that he did know or could reasonably have been expected to know of this.

Clause 44: Care workers: interpretation

     34.     This clause defines a relationship of care for clauses 40 to 43. An example of a relationship covered by subsection (2) is where A is a member of staff in a care home and B is a resident there. An example of a relationship covered by subsection (3) is where A is a receptionist at the clinic that B attends every week. Subsection (4) covers any situation where A provides care, assistance or services to B in connection with B's mental disorder or learning disability. An example of a relationship covered by subsection (4) is where A takes B on outings every week or treats B for his learning disability with complementary therapies in B's own home. In all cases, A must have or be likely to have regular face to face contact with B. The "likely to have" limb is to cover persons who provide care to B in these situations from day one of their involvement with B.

Clause 45: Sections 40 to 43: marriage exception

     35.     This clause provides A with a defence to the offences under clauses 40 to 43 if he proves he was lawfully married to B at the time of the sexual activity.

Clause 46: Sections 40 to 43: sexual relationships which pre-date care relationships

     36.     This clause provides A with a defence to the offences under clauses 40 to 43 if he proves that his sexual relationship with B pre-dated his relationship of care with B. So if A and B had a lawful sexual relationship before B developed his mental disorder or learning disability and A started caring for him, A would not commit an offence by continuing that sexual relationship.

Clause 47: Indecent photographs of persons aged 16 or 17

37.     This clause redefines a "child" for the purposes of the Protection of Children Act 1978 as a person under 18 years, rather than 16 years, of age. This means the offences of taking, making, permitting to take, distribution, showing, possessing with intent to distribute, and advertising indecent photographs or pseudo-photographs of children will now also be applicable where the photographs concerned are of children of 16 or 17 years of age. The same applies to the offence of possessing an indecent photograph or pseudo-photograph of a child at section 160 of the Criminal Justice Act 1988. However, the clause also inserts exceptions into the offence at section 1 of the 1978 Act allowing an indecent photograph of a 16 or 17 year old to be taken, made or permitted to be taken with the consent of the child concerned. There is also an exception to allow the person who took or made the photograph to possess it or to show or give it to the child, but in all cases the child must consent to this. Thus a person would not commit an offence in taking and possessing an indecent photograph of his 17 year old partner if his partner consented to this.

Clause 48: Criminal investigations or proceedings

38.     This clause creates a limited exception to the offence of "making" an indecent photograph or pseudo-photograph of a child, under section 1(1)(a) of the Protection of Children Act 1978. "Making", for example, covers the situation where a person downloads an image from the Internet or copies a computer hard drive. The exception is where a person has been authorised, by one of the persons listed, to make an indecent photograph or pseudo-photograph. The person may give an authorisation if it appears to him necessary for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. Authorisation may also be given by the Director-General of the Security Service and the Director of GCHQ, if it appears necessary in the exercise of the functions of the Security Service or GCHQ. Any authorisation given under this clause may contain conditions. These could be, for example, that the material will be kept under particular conditions, or disposed of in a particular way, or that a computer system on which it is stored will be subject to inspection by the authoriser or someone acting for him.

Clause 49: Paying for sexual services of a child

     39.     Clause 49 makes it an offence for any person (A) intentionally to obtain the sexual services of a child (B) aged under 18, where those services have been paid for or where payment has been promised. The offence covers where A pays for the services or promises payment either directly to B or to a third party (C) (for example where C is B's pimp) or where A knows that another person (D) has paid for the services or promised such payment. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over) However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. Subsection (2) defines payment widely. It covers not only a payment of money but any financial advantage. This includes the discharge of an obligation to pay, for example, B owes A a debt for a car but A agrees to waive the debt if B provides him with sexual services; the provision of goods or services gratuitously or at a discount, for example, where A provides drugs to B at no or reduced cost on condition that B provides sexual services to A.

Clause 50: Causing or inciting child prostitution or pornography

     40.     Clause 50 makes it an offence for a person (A) intentionally to cause or incite a child under 18 (B) into prostitution or involvement in pornography anywhere in the world. The offence is aimed at persons who recruit into prostitution or pornography (whether on a one-off basis or longer term) those who are not involved or not currently involved in it. This could be where A makes a living from the prostitution of others and encourages new recruits to work for him or another (whether those recruits do actually then engage in prostitution or not). It could also cover where A and B live together and A compels B to become involved in pornography, for example in order to pay their rent, or for any other reason. Unlike with the prostitution offence at clause 54, there is no requirement that the causing or inciting of a child prostitute must be done for gain. The prostitution or pornography can take place, or be intended to take place, in any part of the world. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. The terms "pornography" and "prostitute" are defined in clause 53.

Clause 51: Controlling a child prostitute or a child involved in pornography

     41.     Clause 51 makes it an offence for a person (A) intentionally to control the activities of a child (B) relating to his prostitution or involvement in pornography in any part of the world. The offence is committed even if B's activities in relation to prostitution or pornography are controlled for part of the time by another person. An example of the behaviour that might be caught by this offence is where A requires or directs B to charge a certain price or to use a particular hotel for her sexual services or to pose for a certain photographer and B complies with this request or direction. The prostitution or pornography can take place in any part of the world. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any belief he may have about B's age. The terms "pornography" and "prostitute" are defined in clause 53.

Clause 52: Arranging or facilitating child prostitution or pornography

     42.     Clause 52 makes it an offence for a person (A) to arrange or facilitate the involvement of a child (B) in prostitution or pornography in any part of the world. This offence would cover for example, delivering B to a place where he will be used to make pornography or making arrangements for B's prostitution to take place in a particular room. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. The terms "pornography" and "prostitute" are defined in clause 53.

Clause 53: Sections 50 to 52: Interpretation

     43.     Clause 53 defines the terms "pornography" and "prostitute" as used in clauses 50 to 52.

Clause 54: Causing or inciting prostitution for gain

     44.     Clause 54 makes it an offence for a person (A) to intentionally cause or incite a person (B) into prostitution anywhere in the world where A does so for or in expectation of gain for himself or for a third party. Although this offence is not specifically limited to where B is aged 18 or over, it is aimed at cases where B is an adult, as the offence at clause 50 specifically covers cases where B is under 18. Although prostitution by adults aged 18 or over is not an offence in itself, this offence is intended to cover those who, for gain, recruit others into prostitution, whether this be by the exercise of force or otherwise. The terms "prostitute" and "gain" are defined at clause 56.

Clause 55: Controlling prostitution for gain

45.     Clause 55 makes it an offence for a person (A) intentionally to control, another person's activities relating to prostitution, in any part of the world where A does so for or in the expectation of gain for himself or a third party. This offence covers the same behaviour as clause 51, but is limited to prostitution. Although this offence is not specifically limited to cases where the person controlled is aged 18 or over, it is aimed at those cases, as the offence at clause 51 specifically covers cases where the person controlled is under 18.

Clause 56: Sections 54 and 55: Interpretation

46.     Clause 56 provides definitions for the terms "gain", "prostitute" and "prostitution" as used in clauses 54 and 55. Subsection (1) defines "gain" as any financial advantage, including the discharge of a debt or obligation to pay, or the provision of goods or services (including sexual services) for free, or at a discount. "Sexual services" would cover someone who controls the activities of a number of women in prostitution, where the gain he derives from them is their engaging in sexual intercourse with him. It also covers the goodwill of any person likely to bring such a financial advantage. So in relation to the offence at clause 54 for example, this would cover A inciting B to work as a prostitute for C, where A expects this will lead to C providing him (A) with cheap drugs at a later date.

Clause 57: Extension of gender-specific prostitution offences

     47.     Clause 57 brings into effect Schedule 1 (extension of gender-specific prostitution offences) of the Act. Schedule One widens the offences of "permitting the premises to be used for prostitution" (at section 35 of the Sexual Offences Act 1956), "loitering or soliciting for purposes of prostitution" and the provisions relating to cautions for this offence (at sections 1 and 2 of the Street Offences Act 1959), "kerb crawling" and "persistent soliciting of women for the purpose of prostitution" (at sections 1 and 2 of the Sexual Offences Act 1985), otherwise unchanged by this Bill, to cover all people involved, irrespective of their gender.

Clause 58: Trafficking into the UK for sexual exploitation

48.     Clause 58 makes it an offence for a person (A) intentionally to arrange or facilitate the arrival into the UK of a person (B), where A intends to commit a relevant offence in respect of B in the United Kingdom or elsewhere or he intends to facilitate another person to do so. "Relevant offence" is defined at subsection (1) of clause 61. This offence re-enacts with amendments the offence in section 145 of the Nationality, Asylum and Immigration Act 2002. A may intend the relevant offence to be committed in any part of the world. This is to ensure that it will be an offence where, for example, A traffics B into the UK as an interim destination but intends to traffic B onto another country so he can be subjected to a sexual offence there. It may be either A or another person who A intends will commit the offence in respect of B. So for example, it will, be an offence for A to make arrangements to bring B into the UK with the intention that C will then, for gain, force B into prostitution in Germany (causing prostitution for gain will be a relevant offence). It is A's intent that is important, so the offence would still be committed if C never actually caused B to work as a prostitute. A will only commit the offence if he intends that B should be the victim of an offence. This will ensure that airline companies, road hauliers etc who are transporting someone without any criminal intent are not captured. The offence is intended however, to cover A if he is part of the enterprise of trafficking for sexual exploitation even if he is one link in a chain of people helping to traffic B, provided that he is acting intentionally to traffic. Provided A has the necessary intent, it will cover for example his recruiting B in B's country of origin, his making arrangements for transport and food for B's journey, his forging of immigration documents for B and his other involvement in bringing B to the UK.

Clause 59: Trafficking within the UK for sexual exploitation

49.     Clause 59 makes it an offence for a person (A) intentionally to arrange or facilitate travel within the UK of a person (B) where A intends to commit or to facilitate the commission of a relevant offence against B anywhere in the world, either during or after the journey. "Relevant offence" is defined at subsection (1) of clause 61. This offence is intended to apply both to UK nationals who are moved from one place to another in the UK to be sexually exploited as well as to others, including foreign nationals, who are, for example, trafficked to London from central Europe and then moved from London to another part of the UK to be sexually exploited.

Clause 60: Trafficking out of the UK for sexual exploitation

50.     Clause 60 makes it an offence for a person (A) intentionally to arrange or facilitate the departure from the UK of a person (B) where A intends to commit a relevant offence with respect to B after B's departure or A intends to facilitate the commission of a relevant offence with respect to B following B's departure. A may intend the relevant offence to take place in any part of the world. "Relevant offence" is defined at subsection (1) of clause 61. The offence is designed to cover the situation where B is in the UK, either because he is ordinarily resident here or because he has been trafficked here, but is then trafficked by A to another part of the world to be subjected to a sex offence.

Clause 61: Sections 58 to 60: interpretation and jurisdiction

     51.     Clause 61 gives for the purposes of the above clauses the definition of "relevant offence". A "relevant offence" is the purpose for which a trafficked person is trafficked. It includes acts done outside of England and Wales and Northern Ireland which, if they had been done in those countries would constitute an offence under Part 1 of the Bill or under section 1(1)(a) of the Protection of Children Act 1978 (or the equivalent offences in Northern Ireland). This includes an act which does not necessarily constitute an offence in the country in which it is done. It also defines the territorial extent and jurisdiction of the above clauses. The offences will cover behaviour committed by any person in the UK. They will also cover such behaviour outside the UK by any body incorporated under UK law such as a UK company. The offences may also be committed by any of the categories of British person listed at subsection (3) of the clause when abroad, irrespective of whether or not the activity is a criminal offence under the law in the country in which the activity is committed.

Clause 62: Administering a substance with intent

     52.     Clause 62 makes it an offence for a person (A) intentionally to administer a substance or to cause any substance to be taken by another person (B) where A knows that B does not consent to taking that substance and where A intends to stupefy or overpower B so that any person can engage in sexual activity involving B. The offence is intended to cover use of so-called "date rape drugs" administered without the victim's knowledge or consent but would also cover the use of any other substance with the relevant intention. It would cover A 'spiking' B's drinks with alcohol where B did not know he was consuming alcohol but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew that he was consuming alcohol. The substance may be administered to B in other ways, for example, by injection or by covering B's face with a cloth impregnated with the substance. The offence applies where A himself administers the substance to B or where A causes the substance to be taken by B, for example where A persuades a friend C to administer the substance to B because C knows B socially and can more easily slip it into B's drink so that A can have sex with B. The intended sexual activity need not involve A however. In the example given it could be intended that C or any other person would have sex with B. The term "sexual", used in this clause in the phrase "sexual activity", is defined in clause 79. The sexual activity in this offence could involve A having sexual intercourse with or masturbating B; could involve A causing B to commit a sexual act upon himself (for example, masturbation); or could involve B and a third party engaging in sexual activity together, regardless of whether the third party had administered the substance. The offence would be made out where A administers the substance or causes B to take it (with the relevant intent) regardless of whether any sexual activity took place, for example because a friend of B saw what was happening and intervened to protect B.