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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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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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 41    Care workers: sexual activity in the presence of a person with a mental

disorder

     (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

                  (i)                 when another person (B) is present or is in a place from which

A can be observed, and

                  (ii)                knowing or believing that B is aware, or intending that B should

be aware, that he is engaging in it,

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           (d)           B has a mental disorder,

           (e)                         A knows or could reasonably be expected to know that B has a mental

disorder, and

           (f)           A is involved in B’s care in a way that falls within section 43.

     (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, it is to be taken that the defendant knew

or could reasonably have been expected to know that that person had a mental

disorder unless sufficient evidence 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—

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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

7 years.

 42    Care workers: causing a person with a mental disorder to watch a sexual act

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     (1)    A person (A) commits an offence if—

           (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 an image of any person engaging in an activity,

           (b)           the activity is sexual,

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Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    23

 

           (c)           B has a mental disorder,

           (d)           A knows or could reasonably be expected to know that B has a mental

disorder, and

           (e)           A is involved in B’s care in a way that falls within section 43.

     (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, it is to be taken that the defendant knew

or could reasonably have been expected to know that that person had a mental

disorder unless sufficient evidence 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—

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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

7 years.

 43    Care workers: interpretation

15

     (1)    For the purposes of sections 39 to 42, 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—

           (a)           B is accommodated and cared for in a care home, community home,

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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.

     (3)    This subsection applies if B is a patient for whom services are provided—

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           (a)           by a National Health Service body or an independent medical agency,

or

           (b)           in an independent clinic or an independent hospital,

            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

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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,

assistance or services to B in connection with B’s mental disorder, and

           (b)           as such, has had or is likely to have regular face to face contact with B.

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     (5)    In this section—

                    “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 the meaning given by section 1 of that Act;

                    “community home” has the meaning given by section 53 of the Children

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Act 1989 (c. 41);

                    “employment” means any employment, whether paid or unpaid and

whether under a contract of service or apprenticeship, under a contract

for services, or otherwise than under a contract;

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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                    “independent clinic”, “independent hospital” and “independent medical

agency” have the meaning given by section 2 of the Care Standards Act

2000 (c. 14);

                    “National Health Service body” means—

                  (a)                 a Health Authority,

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                  (b)                 a National Health Service trust,

                  (c)                 a Primary Care Trust, or

                  (d)                 a Special Health Authority;

                    “voluntary home” has the meaning given by section 60(3) of the Children

Act 1989 (c. 41).

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 44    Sections 39 to 42: marriage exception

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

sections 39 to 42 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

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lawfully married at the time.

 45    Sections 39 to 42: sexual relationships which pre-date care relationships

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

sections 39 to 42 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

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section 43, 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.

     (3)    In proceedings for an offence under any of sections 39 to 42 it is for the

defendant to prove that such a relationship existed at that time.

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Indecent photographs of children

 46    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”

30

substitute “18”.

     (3)    After section 1 insert—

       “1A              Marriage and other relationships

           (1)           This section applies where, in proceedings for an offence under section

1(1)(a) of taking or making an indecent photograph of a child, or for an

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offence under section 1(1)(b) or (c) relating to an indecent photograph

of a child, the defendant proves—

                  (a)                 that at the time of the offence charged, he was married to the

child, or

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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                  (b)                 that the photograph was of the child aged 16 or over, and that

at the time of the offence charged, the child and he lived

together as partners in an enduring family relationship.

           (2)           Subsections (5) and (6) also apply where, in proceedings for an offence

under section 1(1)(b) or (c) relating to an indecent photograph of a

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child, the defendant proves—

                  (a)                 that at the time when he obtained the photograph, he was

married to the child, or

                  (b)                 that the photograph was of the child aged 16 or over, and that

at the time when he obtained it the child and he lived together

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as partners in an enduring family relationship.

           (3)           This section applies whether the photograph showed the child alone or

with the defendant, but not if it showed any other person.

           (4)                         In the case of an offence under section 1(1)(a), if sufficient evidence is

adduced to raise an issue as to whether the child consented to the

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photograph being taken or made, or as to whether the defendant

reasonably believed that the child so consented, the defendant is not

guilty of the offence unless it is proved that the child did not so consent

and that the defendant did not reasonably believe that the child so

consented.

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           (5)           In the case of an offence under section 1(1)(b), the defendant is not

guilty of the offence unless it is proved that the showing or distributing

was to a person other than the child.

           (6)                         In the case of an offence under section 1(1)(c), if sufficient evidence is

adduced to raise an issue both—

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                  (a)                 as to whether the child consented to the photograph being in the

defendant’s possession, or as to whether the defendant

reasonably believed that the child so consented, and

                  (b)                 as to whether the defendant had the photograph in his

possession with a view to its being distributed or shown to

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anyone other than the child,

                         the defendant is not guilty of the offence unless it is proved either that

the child did not so consent and that the defendant did not reasonably

believe that the child so consented, or that the defendant had the

photograph in his possession with a view to its being distributed or

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shown to a person other than the child.”

     (4)           After section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent

photograph of child) insert—

       “160A  Marriage and other relationships

           (1)           This section applies where, in proceedings for an offence under section

40

160 relating to an indecent photograph of a child, the defendant

proves—

                  (a)                 that at the time of the offence charged, he was married to the

child, or

                  (b)                 that the photograph was of the child aged 16 or over, and that

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at the time of the offence charged, the child and he lived

together as partners in an enduring family relationship.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    26

 

           (2)           This section also applies where, in proceedings for an offence under

section 160 relating to an indecent photograph of a child, the defendant

proves—

                  (a)                 that at the time when he obtained the photograph, he was

married to the child, or

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                  (b)                 that the photograph was of the child aged 16 or over, and that

at the time when he obtained it the child and he lived together

as partners in an enduring family relationship.

           (3)           This section applies whether the photograph showed the child alone or

with the defendant, but not if it showed any other person.

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           (4)                         If sufficient evidence is adduced to raise an issue as to whether the child

consented to the photograph being in the defendant’s possession, or as

to whether the defendant reasonably believed that the child so

consented, the defendant is not guilty of the offence unless it is proved

that the child did not so consent and that the defendant did not

15

reasonably believe that the child so consented.”

 47    Criminal proceedings, investigations etc.

     (1)    After section 1A of the Protection of Children Act 1978 (c. 37) insert—

       1B   Exception for criminal proceedings, investigations etc.

           (1)           It is not an offence under section 1(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 subsection (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)                 a chief officer of police,

                  (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

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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

40

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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Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    27

 

                  (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—

            “3A.        Exception for criminal proceedings, investigations etc.

                       (1)                It is not an offence under Article 3(1)(a) for a person to make an

5

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

10

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,

15

                    (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

20

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 (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.”

Abuse of children through prostitution and pornography

 48    Paying for sexual services of a child

     (1)    A person (A) commits an offence if—

           (a)           he intentionally obtains for himself the sexual services of another

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person (B),

           (b)           before obtaining those services, he has made or promised payment for

those services to B or a third person, or knows that another person has

made or promised such a payment, and

           (c)           either—

40

                  (i)                 B is under 18, and A does not reasonably believe that B is 18 or

over, or

                  (ii)                B is under 13.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    28

 

     (2)    In this section, “payment” means any financial advantage, including the

discharge of an obligation to pay or the provision of goods or services

(including sexual services) gratuitously or at a discount.

     (3)    A person guilty of an offence under this section against a person under 13,

where the offence involved—

5

           (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 by B with

anything else, or

10

           (d)           penetration of A’s mouth with B’s penis,

            is liable, on conviction on indictment, to imprisonment for life.

     (4)    Unless subsection (3) applies, a person guilty of an offence under this section

against a person under 16 is liable, on conviction on indictment, to

imprisonment for a term not exceeding 14 years.

15

     (5)    Unless subsection (3) or (4) applies, 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

20

7 years.

     (6)    In the application of this section to Northern Ireland, subsection (4) has effect

with the substitution of “17” for “16”.

 49    Causing or inciting child prostitution or pornography

     (1)    A person (A) commits an offence if—

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           (a)           he intentionally causes or incites another person (B) to become a

prostitute, or to be involved in pornography, in any part of the world,

and

           (b)           either—

                  (i)                 B is under 18, and A does not reasonably believe that B is 18 or

30

over, or

                  (ii)                B is under 13.

     (2)    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;

35

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

14 years.

 50    Controlling a child prostitute or a child involved in pornography

     (1)    A person (A) commits an offence if—

           (a)           he intentionally controls any of the activities of another person (B)

40

relating to B’s prostitution or involvement in pornography in any part

of the world, and

           (b)           either—

                  (i)                 B is under 18, and A does not reasonably believe that B is 18 or

over, or

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