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(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; | 5 |
(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 | 10 |
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. | 15 |
(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. | 20 |
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 | 25 |
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. | 30 |
(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 | 35 |
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, | 40 |
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. | |
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(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. | 5 |
(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— | 10 |
(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 | 15 |
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); | 20 |
(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. | 25 |
(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 | 30 |
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 | 35 |
(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 | 40 |
as to whether he reasonably believed it. | |
(2) The circumstances are that— | |
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(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 | 5 |
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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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. | 30 |
(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 | 35 |
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 | | 40 | | | An offence under section 1 (rape). | | The defendant intentionally | | | | | | | penetrating, with his penis, the | | | | | | | vagina, anus or mouth of another | | | | | | | person (“the complainant”). | | |
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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 | | 5 | | | | | 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 | | 15 | | | | | sexual. | | |
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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 | 20 |
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. | 25 |
(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. | 30 |
(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 | 35 |
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, | 40 |
and in particular includes touching amounting to penetration. | |
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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; | 10 |
(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. | 15 |
(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, | 20 |
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 | 25 |
(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 | 30 |
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 | 35 |
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 | 40 |
1st September 1997 unless, at the beginning of that day, the person— | |
(a) had not been dealt with in respect of the finding; or | |
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(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 | 5 |
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. | 10 |
(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 | 15 |
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); | 20 |
(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 | 25 |
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 | | 30 | | | 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 | | | 35 | | | 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 | | | 40 |
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| | 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 | | 15 | | | 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 | | 20 | | | | date | | |
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(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 | 25 |
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 | 30 |
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. | 35 |
(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 | 40 |
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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