House of Commons - Explanatory Note
Sexual Offences Bill - continued          House of Commons

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Clause 63: Committing an offence with intent to commit a sexual offence

     53.     Clause 63 makes it an offence for a person (A) intentionally to commit any criminal offence with intent to commit any relevant sexual offence as defined in subsection (2). This offence is intended to capture where A commits a criminal offence but does so with the intention of committing a subsequent sexual offence, but regardless of whether or not the substantive sexual offence is committed. It would apply, for example, where A kidnaps B so that he can rape him but is caught by the police before committing the rape. It would also apply where A detained B in his flat with this intention or assaulted B to subdue him so that he could more easily rape him. If A does commit the intended offence, he could be charged with the substantive sexual offence in addition to this offence.

Clause 64 Trespass with intent to commit a sexual offence

54.     Clause 64 makes it an offence for A to intend to commit a "relevant sexual offence" (defined at subsection (2) of clause 63) whilst he is on any premises where he is a trespasser, either knowing, or being reckless as to whether, he is trespassing. A person is a trespasser if he is on any premises without the owner or occupier's consent. This offence is intended to capture, for example, the situation where a person (A) enters a building owned by B, or goes into B's garden or garage without B's consent, intending to commit a sexual offence against the occupier. The offence applies regardless of whether or not the substantive sexual offence is committed. A will commit the offence if he has the intent to commit a relevant sexual offence at any time while en he is a trespasser. The intent is likely to be inferred from what the defendant says or does to the intended victim (if there is one) or from items in possession of the defendant at the time he commits the trespass (for example, condoms, pornographic images, rope etc.)

Clause 65: Sex with an adult relative: penetration

Clause 66: Sex with an adult relative: consenting to penetration

55.     Clause 65 makes it an offence for a person (A) aged 16 or over intentionally to penetrate sexually a close relative (B) who is aged 18 or over if he knows or could reasonably have been expected to know that B is his close relative. Clause 66 makes it an offence for a person (A) aged 16 or over to consent to being penetrated sexually by a close relative (B) aged 18 or over if he knows or could reasonably have been expected to know that B is his close relative. For the offence to be committed the penetration must be "sexual", as defined at Clause 79. This requirement ensures that penetration for some other purpose, for example where one sibling helps another to insert a pessary for medical reasons, is not caught by this offence. Subsection (2) defines "relative" for the purposes of this offence. Adoptive relatives are excluded from this offence. Paragraph 37 of Schedule 5 makes a consequential amendment to the Adoption and Children Act 2002, to the effect that the provision in the 2002 Act that makes an adoptive child a child of the adoptive parents, does not apply in relation to these offences. Therefore, for example, it will not be an offence under these clauses for an adoptive brother and sister aged over 18 to have sexual intercourse. The effect of subsection (3) is 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 that B is his relative, it is presumed that he did know or could reasonably have been expected to know it.

Clause 67: Sexual activity in a public lavatory

56.     Clause 67 makes it an offence to intentionally engage in specified sexual activities in a public lavatory. The term "sexual" is defined at Clause 79. This term is used in this clause in order to exclude, for example, emergency medical procedures that involve penetration of the anus or touching a baby's genitalia as part of the process of changing its nappy. Subsection (2) specifies the sexual acts relevant to the offence. Subsection (3) defines public lavatory. In relation to subsection 2(c) and (d) the reference to "other than through..clothes" is to exclude from the offence cases where A's knee might touch another person's crotch while they are embracing fully clothed.

Clause 68: Exposure

57.     Clause 68 makes it an offence for a person intentionally to expose his genitals where he either knows or intends that someone will see them and be caused alarm or distress. It is not necessary for A's genitals to have been seen by anyone or for anyone to have been alarmed or distressed. For example, if a person exposes his genitals to some passers-by, he may (depending on his state of mind) commit the offence regardless of whether they actually see his genitals or whether they have been alarmed or distressed by seeing them.

Clause 69: Voyeurism

58.     Clause 69 makes it an offence, under subsection (1) for a person, (A), to observe for his own sexual gratification another person doing a private act e.g. looking through a window or peephole at someone having sexual intercourse, where A knows the person observed does not consent to being looked at for this purpose. Subsection (2) covers a person (A) operating equipment with the intention of enabling another person, for their sexual gratification, to observe a third person (B), doing a private act, where A knows that B does not consent to being so viewed. This would cover for example A, a landlord, operating a webcam to allow people on the internet for their sexual gratification to view live images of the his tenant (B) getting undressed, if (A) knew that (B) did not consent to this. Subsection (3) covers a person (A) recording another person (B) doing a private act with the intention that he will look at the recording for his own sexual gratification, or that he intends other people to look, for their sexual gratification at the recording, and where he knows that the person (B) does not consent to the recording of that act with that intention. This would therefore cover the person (A) who secretly films someone (B) masturbating in their bedroom to show to others for their sexual gratification. Proof that the intention was the sexual gratification of others could be derived from, for example, the fact that the image was posted on a pornographic website, or in a pornographic magazine. A will be caught by the offence whether or not those looking at the image know that the person filmed did not consent to the filming with that intention. Subsection (4) would cover someone who, for example, drilled a spy-hole or installed a two-way mirror in a house with the intention of spying on someone for sexual gratification or allowing others to do so. A would be caught even if the peephole or mirror is discovered before it is used.

Clause 70: Voyeurism: interpretation

     59.     Clause 70 defines "private act", "observation", "image" and "structure" for the purposes of clause 69.

Clause 71: Intercourse with an animal

60.     Clause 71 makes it an offence for a man intentionally to penetrate the vagina or anus of a living animal with his penis where he knows or is reckless as to whether that is what he is penetrating. The reference to vagina or anus in this context is further explained at subsection (8) of clause 80. Subsection (2) of clause 71 makes it an offence for a person to intentionally cause or allow her vagina or his or her anus to be penetrated by the penis of a living animal where he or she knows or is reckless as to whether that is what is doing the penetrating. This offence is related solely to penile penetration in relation to animals and does not replace existing legislation covering cruelty to animals.

Clause 72: Sexual penetration of a corpse

61.     Clause 72 makes it an offence for a person (A) intentionally to penetrate any part of the body of a dead person (B) with his penis, any other body part (for example his finger), or other object, where that penetration is sexual. The offence is committed when A knows or is reckless as to whether he is penetrating any part of a dead body. This is intended to cover when A knows he is penetrating a dead body, for example in a mortuary, or where A is reckless as to whether B is alive or dead (that is, A is aware of a risk that B is dead and unreasonably takes that risk). It will not cover situations where A penetrates B fully believing B to be alive, but in fact B is dead, or where B unexpectedly dies during intercourse. The penetration must be sexual. A definition of sexual is given in clause 79. This is to exclude legitimate penetration of corpses, for example that which occurs during an autopsy.

Clause 73: Offences outside the United Kingdom

62.     Subsection (1) of clause 73 makes it an offence in England, Wales and Northern Ireland for a British citizen or UK resident (subject to subsection (2)) to commit a sexual offence overseas against a child under 16 (or in Northern Ireland, under 17). The date referred to in subsection (2) is the commencement date of Part 2 of the Sex Offenders Act 1997, which this clause re-enacts. The act done must amount to a sexual offence listed in Schedule 2 and must also amount to an offence in the country where it was committed. The exact description of the offence does not need to be the same in both countries. For example, the provisions would apply to someone who raped a child in another country regardless of how that offence was described under the law in that country. Subsection (4) provides that the defendant can require the prosecution to prove that an overseas offence is equivalent to one in Schedule 2.

Clause 74: Exceptions to aiding, abetting or counselling

     63.     Clause 74 provides that, in certain defined circumstances, a person is not guilty of aiding, abetting or counselling a sexual offence under clauses 6, 7 and 8 (offences against children under 13), clause 10 (sexual activity with a child), clause 14 (where the offence would be an offence under clause 10 if the offender were over 18) and clauses 18, 27, 32, 36 and 40 (where the victim is a child under 16). The exception applies where the person is acting for the purpose of protecting a child from pregnancy or sexually transmitted infections, for the purpose of protecting the physical safety of a child, or for the purpose of promoting a child's emotional well-being. In this last case, however, the exception only applies where the person provides advice. In all cases, the person must not be causing or encouraging the commission of an offence or a child's participation in it. So a person who was providing advice to a child under 16 about sexual health or contraception, in order to protect the child from becoming pregnant would not fall within the exception if he was at the same time encouraging the child to have sex.

Clause 75: "Consent"

     64.     Clause 75 defines "consent" for the purposes of this Part. This definition is relevant to many clauses in Part 1 including, for example, the offence of rape (clause 1). The clause refers to a person's capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder or learning disability.

Clause 76: Presumptions about the absence of belief in consent

     65.     This clause applies to the offences of rape (clause 1), assault by penetration (clause 3), sexual assault (clause 4) and causing a person to engage in sexual activity without consent (clause 5). The clause provides for presumptions that may be challenged by the defendant. The presumptions arise in the circumstances described in subsection (2). The difference between paragraphs (a) and (b) of subsection (2) is that paragraph (a) covers violence and threats of violence used against the complainant whereas paragraph (b) covers violence and threats of violence used against a person other than the complainant. The violence or threat must occur either at the time of the relevant act or immediately before it began. The effect of subsection (4) is that where, for example, the relevant act for which the person is being prosecuted is penetration, but the penetration is the culmination of a series of sexual activities, then if the violence or threat occurred immediately before the first sexual activity (as opposed to the penetration), the presumptions still arise. Where the prosecution proves that the defendant did a relevant act (as defined in clause 78), that the circumstances described in subsection (2) existed and that the defendant knew that those circumstances existed, complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented. In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. The evidence produced may be from evidence that the defendant himself gives in the witness box, or from evidence given on his behalf by a defence witness, or resulting from evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, he will so direct; if not, he will direct the jury to find the defendant guilty.

Clause 77: Conclusive presumptions about consent

     66.     This clause creates conclusive presumptions about lack of consent and absence of belief in consent in situations where the defendant deceived the complainant into sexual activity. Subsection (2)(a) covers the situation where, for example, the defendant intentionally tells the complainant that digital penetration of her vagina is necessary for medical reasons when in fact it is for his sexual gratification. Subsection (2)(b) covers the situation where, for example, the defendant impersonates the complainant's partner and thereby causes the complainant to consent to the relevant act. Where the prosecution prove that the defendant did a relevant act (as defined in clause 78) and that any of the circumstances described in subsection (2) existed, it is conclusively presumed that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act. The defendant will therefore be convicted.

Clause 79: "Sexual"

67.     Clause 79 defines "sexual" for the purposes of this Part. This definition is relevant to many of the offences under this Part. For example, clause 2(1)(b) refers to penetration which is sexual and clause 10(1)(b) refers to touching which is sexual. Paragraph (a) requires the reasonable person to look at the nature of the activity in question. If, from looking at the nature of the activity, it would not occur to the reasonable person that it would be sexual, it does not meet the test, even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes do not fall within the definition of sexual activity. The nature of some activities is such that they are obviously sexual, such as sexual intercourse, and they would meet the test. Other activities may or may not be sexual depending on the circumstances and the intentions of the people carrying them out, for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason. These activities would meet the test in paragraph (a) since the reasonable person need only think that the activities may be sexual; he does not need to come to any conclusion about the matter. Activities which meet the test in paragraph (a) must then be considered under paragraph (b). In order to assess whether the activity is sexual, the reasonable person must look at any or all of the following factors: the nature of the activity; the circumstances in which the activity is carried out; and the purpose of any of the participants. Where the activity is, for example, oral sex, it seems likely that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (eg a doctor's surgery) and the purpose of any of the participants (if the doctor's purpose is medical, the activity will not be sexual; if the doctor's purpose is sexual, it will be sexual).

Clause 80: Part 1: general interpretation

     68.     Clause 80 gives a series of definitions relevant to offences in this Part. Subsection (2) is needed so that where, for example, a person consents at the time of entry to penetration, but then withdraws his consent and the penetration continues, the person penetrating is guilty of rape or assault by penetration. Subsection (5) defines photograph and pseudo-photograph by reference to the Protection of Children Act 1978. The effect of this is that for example, a photograph includes a film and video recording and a pseudo-photograph includes an image made by computer graphics.

Part 2: Notification and Orders

Clause 81: Persons becoming subject to notification requirements

69.     Clauses 81 to 93 re-enact with amendments, Part I of the Sex Offenders Act 1997 (the 1997 Act), which established the obligation on sex offenders to notify their details with the police. This process is commonly known as "registration". Clause 81 and 82 set out the persons who are required to comply with the notification requirements. Such a person is referred to as a "relevant offender" (subsection (2)). Subsection (1)(a) provides that notification requirements apply to a person who is convicted of an offence specified in Schedule 3, which are exclusively sexual offences. The offences in Schedule 3 relating to England and Wales, Scotland, Northern Ireland and Service Law respectively, include all the offences that were listed in the corresponding section of Schedule 1 of the 1997 Act. In relation to England and Wales, Schedule 3 also includes various offences under Part 1 of this Bill. A number of the offences in Schedule 3 are subject to age and sentence thresholds beneath which the offence will not trigger the notification requirements. In relation to clause 81 (and Part 2 generally) a "conviction" includes a conviction after commencement which results in a conditional discharge: clause 132 provides that in relation to an order for a conditional discharge, the legislation that deems a conviction with an absolute or conditional discharge not to be a conviction, does not apply in relation to this Part of the Bill. A conviction also includes a finding by a court martial (clause 131). The term "convicted" as it applies to mentally disordered offenders is explained at clause 133(1) and (2). The reference at subsection (1)(c) is further explained at clause 133(3). Subsection (1)(d) refers to a person who is cautioned for a relevant offence. Clause 131 provides that the term 'caution' includes a reprimand or warning given under section 65 of the Crime and Disorder Act 1998 (the 1998 Act), which are given to young offenders.

Clause 82: Persons formerly subject to Part 1 of the Sex Offenders Act 1997

70.     Clause 82 provides that, on commencement of this Part of the Bill, offenders previously subject to the notification requirements of the 1997 Act by virtue of a conviction, relevant finding or caution for an offence listed in Schedule 3 of the Bill, will be subject to the notification requirements of this Part. Subsections (3) to (6) replicate the partially retrospective provisions of the 1997 Act, so that, save in specified circumstances, convictions, findings and cautions that pre-date 1 September 1997 (the date of commencement of the 1997 Act) will not trigger the notification requirements. Subsections (7) and (8) relate to persons who immediately before commencement of this Part were subject to a sex offender order or an interim sex offender order in England, Wales, Northern Ireland or Scotland, or a restraining order in England and Wales. These orders all impose the notification requirements under the 1997 Act. Such persons will, from commencement, become subject to the notification requirements of this Part of the Bill.

Clause 83: The notification period

71.     Clause 83 sets out the period during which a relevant offender will be subject to the notification requirements. In the most serious cases, as reflected in the sentence passed for the offence, the person will be subject to the requirements for an indefinite period, which means the rest of his life. In less serious cases, the offender will be subject to the requirements for a fixed period. For example, where a person after commencement is cautioned for a relevant offence, the notification period is two years. The notification period starts from the date of conviction, finding or caution. This is called the 'relevant date' (subsection (6)). The date of conviction etc in relation to offences in Schedule 3 that are subject to disposal thresholds is set out in Clause 130. Subsection (2) provides that, where an adult would be subject to the notification requirements for a determinate period (that is ten, seven, five or two years), that period will be halved in the case of an offender who is under 18 on the relevant date (that is, the date of conviction, relevant finding or reprimand or final warning.) Subsections (3) and (4) set out how to calculate the notification period where an offender is sentenced for more than one Schedule 3 offence and these sentences are terms of imprisonment running consecutively or partly concurrently. Where the terms are consecutive, they are to be added together. For example, where an offender is sentenced to 3 months' imprisonment for one relevant offence and 10 months' imprisonment for another such offence, to run consecutively, the sentence would be treated as 13 months' imprisonment for the purposes of working out the notification period (in this case, 10 years). Terms will be partly concurrent when they are imposed on different occasions. An example would be where an offender is sentenced to 10 years' imprisonment for a Schedule 3 offence, and 6 years into this term he is sentenced to 12 years' imprisonment for a second Schedule 3 offence. Where this is the case, the notification period is based on the combined length of the terms minus any overlapping period. In the example given, the combined length of the sentences would be 22 years and the overlapping period would be the remaining 4 years of the 10-year sentence. So the sentence for the purposes of working out the notification period would be 18 years. Subsection (5) relates to the situation where there is an initial finding that a person is under a disability and has done the act charged and he is later tried for the offence. An example would be where such a finding was made, the person was admitted to hospital under a restriction order and the notification requirements would therefore apply for an indefinite period. Where such a person was subsequently tried for the offence, the indefinite notification period will cease to apply as from the end of the trial. If the person is convicted and sentenced to, say, 12 months' imprisonment for the offence, the new notification period would be 10 years, starting from the date of the conviction. If the person is acquitted at trial, the person ceases to be subject to the notification requirements in respect of that matter.

Clause 84: Notification requirements: initial notification

72.     Clause 84 sets out the information the offender needs to supply to the police when he first makes a notification and the time scales within which he is required to provide that information. Subsection (2) relates to a case where someone is already subject to the notification requirements by virtue of a conviction etc. for a Schedule 3 offence or court order and has complied with subsection (1), at the time he is convicted etc. of a Schedule 3 offence. A person in this situation does not need to notify his details again in accordance with subsection (1) in respect of that further conviction. This is only the case, however, where the notification period in respect of the original conviction etc. lasts for the period specified at subsection (1) (as extended in accordance with subsection (6) - see below - if appropriate). Subsection (4) makes similar provision in respect of persons who are already subject to the notification requirements at the time a notification order is made. Subsection (3) provides that the obligation imposed by subsection (1) does not apply to a person who, on commencement, in relation to a pre-commencement conviction etc. has complied with the obligation to notify his name and address to the police under section 2(1) of the 1997 Act. Where a person subject to the requirements of the 1997 Act has not complied with section 2(1) of that Act, he must, under subsection (1) of clause 84, notify the police of the details in subsection (5) within 3 days of commencement of Part 2 of the Bill. The details in subsection (5) include the offender's home address. The term 'home address' is defined in subsection (7). This provides that where an offender is homeless or has no fixed abode his 'home address' means an address or location where he can be regularly found. This might, for example, be a shelter, a friend's house, a caravan or a park bench. In calculating the time limits within which an offender must give notification under subsection (1), the periods specified in subsection (6) do not count. This means, for example, that an offender who is immediately taken into custody following a conviction for an offence triggering the notification requirements, need not notify the police of the details in subsection (5) of clause 84 within 3 days of that conviction. Instead, the requirement will be to notify his details within 3 days of his release.

Clause 85: Notification requirements: changes

     73.     Clause 85 sets out the requirements on a relevant offender to notify the police of changes to notified details. Under subsection (1)(c) an offender must notify the police within 3 days, of the address of any premises he has stayed at within the UK, besides his home address, for a 'qualifying period'. This might be a friend or relative's house or a hotel where he has stayed. A qualifying period is defined at subsection (6). Subsection (2) allows an offender to notify the police of any change to his notified details (his name, address or having stayed away from home for 7 or more days) in advance of such change. The notification must give a date when the change is expected to occur. Subsections (3) and (4) deal with the scenario in which the change does not take place as notified in advance. As long as the change takes place within a 3-day margin of the date notified, the offender need not update the police as to the actual date on which the change took place. However, where the change takes place outside that 3-day margin, the person must notify the change in accordance with subsection (1), that is, within 3 days of the actual change. And, where the change takes place 3 days or more after the date specified, the person must also notify the police (within 6 days of the date specified) that the information he notified in advance is no longer correct. The effect of subsection (5) is that, while an offender is in custody, detained or abroad (as provided at subsection (6) of clause 84), he will not be required to notify the police of any change of name or address or having stayed away for 7 days or more. The 3-day time limit will be suspended for the duration of the detention or period abroad and will apply from the end of that period.

 
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Prepared: 20 June 2003