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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    36

 

           (c)           A knows that, or is reckless as to whether, that is what A is being

penetrated by.

     (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

2 years.

 71    Sexual penetration of a corpse

     (1)    A person commits an offence if—

           (a)           he intentionally performs an act of penetration with a part of his body

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or anything else,

           (b)           what is penetrated is a part of the body of a dead person,

           (c)           he knows that, or is reckless as to whether, that is what is penetrated,

and

           (d)           the penetration is sexual.

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     (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;

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

2 years.

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Offences outside the United Kingdom

 72    Offences outside the United Kingdom

     (1)    Subject to subsection (2), any act done by a person in a country or territory

outside the United Kingdom which—

           (a)           constituted an offence under the law in force in that country or

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territory, and

           (b)           would constitute a sexual offence to which this section applies if it had

been done in England and Wales or in Northern Ireland,

            constitutes that sexual offence under the law of that part of the United

Kingdom.

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     (2)    Proceedings by virtue of this section may be brought only against a person who

was on 1st September 1997, or has since become, a British citizen or resident in

the United Kingdom.

     (3)    An act punishable under the law in force in any country or territory constitutes

an offence under that law for the purposes of this section, however it is

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described in that law.

     (4)    Subject to subsection (5), the condition in subsection (1)(a) is to be taken to be

met unless, not later than rules of court may provide, the defendant serves on

the prosecution a notice—

           (a)           stating that, on the facts as alleged with respect to the act in question,

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the condition is not in his opinion met,

           (b)           showing his grounds for that opinion, and

           (c)           requiring the prosecution to prove that it is met.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    37

 

     (5)    The court, if it thinks fit, may permit the defendant to require the prosecution

to prove that the condition is met without service of a notice under subsection

(4).

     (6)    In the Crown Court the question whether the condition is met is to be decided

by the judge alone.

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     (7)    Schedule 2 lists the sexual offences to which this section applies.

Supplementary and general

 73    Exceptions to aiding, abetting and counselling

     (1)    A person is not guilty of aiding, abetting or counselling the commission against

a child of an offence to which this section applies if he acts for the purpose of—

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           (a)           protecting the child from sexually transmitted infection,

           (b)           protecting the physical safety of the child,

           (c)           preventing the child from becoming pregnant, or

           (d)           promoting the child’s emotional well-being by the giving of advice,

            and not for the purpose of obtaining sexual gratification or for the purpose of

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causing or encouraging the activity constituting the offence or the child’s

participation in it.

     (2)    This section applies to—

           (a)           an offence under any of sections 5 to 7 (offences against children under

13);

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           (b)           an offence under section 9 (sexual activity with a child);

           (c)           an offence under section 13 which would be an offence under section 9

if the offender were aged 18;

           (d)           an offence under any of sections 17, 26, 31, 35 and 39 (sexual activity)

against a person under 16.

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     (3)    This section does not affect any other enactment or any rule of law restricting

the circumstances in which a person is guilty of aiding, abetting or counselling

an offence under this Part.

 74    “Consent”

For the purposes of this Part, a person consents if he agrees by choice, and has

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the freedom and capacity to make that choice.

 75    Evidential presumptions about consent

     (1)    If in proceedings for an offence to which this section applies it is proved—

           (a)           that the defendant did the relevant act,

           (b)           that any of the circumstances specified in subsection (2) existed, and

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           (c)           that the defendant knew that those circumstances existed,

            the complainant is to be taken not to have consented to the relevant act unless

sufficient evidence is adduced to raise an issue as to whether he consented, and

the defendant is to be taken not to have reasonably believed that the

complainant consented unless sufficient evidence is adduced to raise an issue

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as to whether he reasonably believed it.

     (2)    The circumstances are that—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    38

 

           (a)           any person was, at the time of the relevant act or immediately before it

began, using violence against the complainant or causing the

complainant to fear that immediate violence would be used against

him;

           (b)           any person was, at the time of the relevant act or immediately before it

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began, causing the complainant to fear that violence was being used, or

that immediate violence would be used, against another person;

           (c)           the complainant was, and the defendant was not, unlawfully detained

at the time of the relevant act;

           (d)           the complainant was asleep or otherwise unconscious at the time of the

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relevant act;

           (e)           because of the complainant’s physical disability, the complainant

would not have been able at the time of the relevant act to communicate

to the defendant whether the complainant consented;

           (f)           any person had administered to or caused to be taken by the

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complainant, without the complainant’s consent, a substance which,

having regard to when it was administered or taken, was capable of

causing or enabling the complainant to be stupefied or overpowered at

the time of the relevant act.

     (3)    In subsection (2)(a) and (b), the reference to the time immediately before the

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relevant act began is, in the case of an act which is one of a continuous series of

sexual activities, a reference to the time immediately before the first sexual

activity began.

 76    Conclusive presumptions about consent

     (1)    If in proceedings for an offence to which this section applies it is proved that

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the defendant did the relevant act and that any of the circumstances specified

in subsection (2) existed, it is to be conclusively presumed—

           (a)           that the complainant did not consent to the relevant act, and

           (b)           that the defendant did not believe that the complainant consented to

the relevant act.

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     (2)    The circumstances are that—

           (a)           the defendant intentionally deceived the complainant as to the nature

or purpose of the relevant act;

           (b)           the defendant intentionally induced the complainant to consent to the

relevant act by impersonating a person known personally to the

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complainant.

 77    Sections 75 and 76: relevant acts

In relation to an offence to which sections 75 and 76 apply, references in those

sections to the relevant act and to the complainant are to be read as follows—

 

Offence

 

Relevant Act

 

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An offence under section 1 (rape).

 

The defendant intentionally

 
   

penetrating, with his penis, the

 
   

vagina, anus or mouth of another

 
   

person (“the complainant”).

 
 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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Offence

 

Relevant Act

 
 

An offence under section 2

 

The defendant intentionally

 
 

(assault by penetration).

 

penetrating, with a part of his body

 
   

or anything else, the vagina or

 
   

anus of another person (“the

 

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complainant”), where the

 
   

penetration is sexual.

 
 

An offence under section 3

 

The defendant intentionally

 
 

(sexual assault).

 

touching another person (“the

 
   

complainant”), where the touching

 

10

   

is sexual.

 
 

An offence under section 4

 

The defendant intentionally

 
 

(causing a person to engage in

 

causing another person (“the

 
 

sexual activity without consent).

 

complainant”) to engage in an

 
   

activity, where the activity is

 

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sexual.

 
 

 78    “Sexual”

For the purposes of this Part (except section 66), penetration, touching or any

other activity is sexual if a reasonable person would consider that—

           (a)                         whatever its circumstances or any person’s purpose in relation to it, it

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is because of its nature sexual, or

           (b)                         because of its nature it may be sexual and because of its circumstances

or the purpose of any person in relation to it (or both) it is sexual.

 79    Part 1: general interpretation

     (1)    The following apply for the purposes of this Part.

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     (2)    Penetration is a continuing act from entry to withdrawal.

     (3)    References to a part of the body include references to a part surgically

constructed (in particular, through gender reassignment surgery).

     (4)    “Image” means a moving or still image and includes an image produced by any

means and, where the context permits, a three-dimensional image.

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     (5)    References to an image of a person include references to an image of an

imaginary person.

     (6)    “Mental disorder” has the meaning given by section 1 of the Mental Health Act

1983 (c. 20).

     (7)    References to observation (however expressed) are to observation whether

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direct or by looking at an image.

     (8)    Touching includes touching—

           (a)           with any part of the body,

           (b)           with anything else,

           (c)           through anything,

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            and in particular includes touching amounting to penetration.

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

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     (9)    “Vagina” includes vulva.

     (10)   In relation to an animal, references to the vagina or anus include references to

any similar part.

Part 2

Notification and orders

5

Notification requirements

 80    Persons becoming subject to notification requirements

     (1)    A person is subject to the notification requirements of this Part for the period

set out in section 82 (“the notification period”) if—

           (a)           he is convicted of an offence listed in Schedule 3;

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           (b)           he is found not guilty of such an offence by reason of insanity;

           (c)           he is found to be under a disability and to have done the act charged

against him in respect of such an offence; or

           (d)           in England and Wales or Northern Ireland, he is cautioned in respect of

such an offence.

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     (2)    A person for the time being subject to the notification requirements of this Part

is referred to in this Part as a “relevant offender”.

 81    Persons formerly subject to Part 1 of the Sex Offenders Act 1997

     (1)    A person is, from the commencement of this Part until the end of the

notification period, subject to the notification requirements of this Part if,

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before the commencement of this Part—

           (a)           he was convicted of an offence listed in Schedule 3;

           (b)           he was found not guilty of such an offence by reason of insanity;

           (c)           he was found to be under a disability and to have done the act charged

against him in respect of such an offence; or

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           (d)           in England and Wales or Northern Ireland, he was cautioned in respect

of such an offence.

     (2)    Subsection (1) does not apply if the notification period ended before the

commencement of this Part.

     (3)    Subsection (1)(a) does not apply to a conviction before 1st September 1997

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unless, at the beginning of that day, the person—

           (a)           had not been dealt with in respect of the offence;

           (b)           was serving a sentence of imprisonment or a term of service detention,

or was subject to a community order, in respect of the offence;

           (c)           was subject to supervision, having been released from prison after

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serving the whole or part of a sentence of imprisonment in respect of

the offence; or

           (d)           was detained in a hospital or was subject to a guardianship order,

following the conviction.

     (4)    Paragraphs (b) and (c) of subsection (1) do not apply to a finding made before

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1st September 1997 unless, at the beginning of that day, the person—

           (a)           had not been dealt with in respect of the finding; or

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

    41

 

           (b)           was detained in a hospital, following the finding.

     (5)    Subsection (1)(d) does not apply to a caution given before 1st September 1997.

     (6)    A person who would have been within subsection (3)(b) or (d) or (4)(b) but for

the fact that at the beginning of 1st September 1997 he was unlawfully at large

or absent without leave, on temporary release or leave of absence, or on bail

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pending an appeal, is to be treated as being within that provision.

     (7)    Where, immediately before the commencement of this Part, an order under a

provision within subsection (8) was in force in respect of a person, the person

is subject to the notification requirements of this Part from that commencement

until the order is discharged or otherwise ceases to have effect.

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     (8)    The provisions are—

           (a)           section 5A of the Sex Offenders Act 1997 (c. 51) (restraining orders);

           (b)           section 2 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders

made in England and Wales);

           (c)           section 2A of the Crime and Disorder Act 1998 (interim orders made in

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England and Wales);

           (d)           section 20 of the Crime and Disorder Act 1998 (sex offender orders and

interim orders made in Scotland);

           (e)           Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I.

1998/2839 (N.I. 20)) (sex offender orders made in Northern Ireland);

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           (f)           Article 6A of the Criminal Justice (Northern Ireland) Order 1998

(interim orders made in Northern Ireland).

 82    The notification period

     (1)    The notification period for a person within section 80(1) or 81(1) is the period

in the second column of the following Table opposite the description that

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applies to him.

 

TABLE

 
 

Description of relevant offender

Notification period

 
 

A person who, in respect of the offence,

An indefinite period beginning with

 
 

is or has been sentenced to

the relevant date

 

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imprisonment for life or for a term of 30

  
 

months or more

  
 

A person who, in respect of the offence,

An indefinite period beginning with

 
 

has been made the subject of an order

that date

 
 

under section 210F(1) of the Criminal

  

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Procedure (Scotland) Act 1995 (order

  
 

for lifelong restriction)

  
 

A person who, in respect of the offence

An indefinite period beginning with

 
 

or finding, is or has been admitted to a

that date

 
 

hospital subject to a restriction order

  

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Sexual Offences Bill [HL]
Part 2 — Notification and orders

    42

 
 

TABLE

 
 

Description of relevant offender

Notification period

 
 

A person who, in respect of the offence,

10 years beginning with that date

 
 

is or has been sentenced to

  
 

imprisonment for a term of more than 6

  

5

 

months but less than 30 months

  
 

A person who, in respect of the offence,

7 years beginning with that date

 
 

is or has been sentenced to

  
 

imprisonment for a term of 6 months or

  
 

less

  

10

 

A person who, in respect of the offence

7 years beginning with that date

 
 

or finding, is or has been admitted to a

  
 

hospital without being subject to a

  
 

restriction order

  
 

A person within section 80(1)(d)

2 years beginning with that date

 

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A person in whose case an order for

The period of conditional discharge or,

 
 

conditional discharge or, in Scotland, a

in Scotland, the probation period

 
 

probation order, is made in respect of

  
 

the offence

  
 

A person of any other description

5 years beginning with the relevant

 

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date

 
 

     (2)    Where a person is under 18 on the relevant date, subsection (1) has effect as if

for any reference to a period of 10 years, 7 years, 5 years or 2 years there were

substituted a reference to one-half of that period.

     (3)    Subsection (4) applies where a relevant offender within section 80(1)(a) or

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81(1)(a) is or has been sentenced, in respect of two or more offences listed in

Schedule 3

           (a)           to consecutive terms of imprisonment; or

           (b)           to terms of imprisonment which are partly concurrent.

     (4)    Where this subsection applies, subsection (1) has effect as if the relevant

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offender were or had been sentenced, in respect of each of the offences, to a

term of imprisonment which —

           (a)           in the case of consecutive terms, is equal to the aggregate of those terms;

           (b)           in the case of partly concurrent terms (X and Y, which overlap for a

period Z), is equal to X plus Y minus Z.

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     (5)    Where a relevant offender the subject of a finding within section 80(1)(c) or

81(1)(c) is subsequently tried for the offence, the notification period relating to

the finding ends at the conclusion of the trial.

     (6)    In this Part, “relevant date” means—

           (a)           in the case of a person within section 80(1)(a) or 81(1)(a), the date of the

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conviction;

           (b)           in the case of a person within section 80(1)(b) or (c) or 81(1)(b) or (c), the

date of the finding;

 

 

 
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