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(4) Where in proceedings for an offence under this section— | |
(a) it is proved that the defendant was in a position of trust in relation to | |
the other person by virtue of circumstances within section 22(2), (3), (4) | |
or (5), and | |
(b) it is not proved that he was in such a position of trust by virtue of other | 5 |
circumstances, | |
it is to be taken that the defendant knew or could reasonably have been | |
expected to know of the circumstances by virtue of which he was in such a | |
position of trust unless sufficient evidence is adduced to raise an issue as to | |
whether he knew or could reasonably have been expected to know of those | 10 |
circumstances. | |
(5) 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 | 15 |
5 years. | |
18 Abuse of position of trust: causing or inciting a child to engage in sexual | |
activity | |
(1) A person aged 18 or over (A) commits an offence if— | |
(a) he intentionally causes or incites another person (B) to engage in an | 20 |
activity, | |
(b) the activity is sexual, | |
(c) A is in a position of trust in relation to B, | |
(d) where subsection (2) applies, A knows or could reasonably be expected | |
to know of the circumstances by virtue of which he is in a position of | 25 |
trust in relation to B, and | |
(e) either— | |
(i) B is under 18 and A does not reasonably believe that B is 18 or | |
over, or | |
(ii) B is under 13. | 30 |
(2) This subsection applies where A— | |
(a) is in a position of trust in relation to B by virtue of circumstances within | |
section 22(2), (3), (4) or (5), and | |
(b) is not in such a position of trust by virtue of other circumstances. | |
(3) Where in proceedings for an offence under this section it is proved that the | 35 |
other person was under 18, the defendant is to be taken not to have reasonably | |
believed that that person was 18 or over unless sufficient evidence is adduced | |
to raise an issue as to whether he reasonably believed it. | |
(4) Where in proceedings for an offence under this section— | |
(a) it is proved that the defendant was in a position of trust in relation to | 40 |
the other person by virtue of circumstances within section 22(2), (3), (4) | |
or (5), and | |
(b) it is not proved that he was in such a position of trust by virtue of other | |
circumstances, | |
it is to be taken that the defendant knew or could reasonably have been | 45 |
expected to know of the circumstances by virtue of which he was in such a | |
position of trust unless sufficient evidence is adduced to raise an issue as to | |
| |
| |
|
| |
| |
whether he knew or could reasonably have been expected to know of those | |
circumstances. | |
(5) 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 | |
5 years. | |
19 Abuse of position of trust: sexual activity in the presence of a child | |
(1) A person aged 18 or over (A) commits an offence if— | |
(a) he intentionally engages in an activity, | 10 |
(b) the activity is sexual, | |
(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 | 15 |
be aware, that he is engaging in it, | |
(d) A is in a position of trust in relation to B, | |
(e) where subsection (2) applies, A knows or could reasonably be expected | |
to know of the circumstances by virtue of which he is in a position of | |
trust in relation to B, and | 20 |
(f) either— | |
(i) B is under 18 and A does not reasonably believe that B is 18 or | |
over, or | |
(ii) B is under 13. | |
(2) This subsection applies where A— | 25 |
(a) is in a position of trust in relation to B by virtue of circumstances within | |
section 22(2), (3), (4) or (5), and | |
(b) is not in such a position of trust by virtue of other circumstances. | |
(3) Where in proceedings for an offence under this section it is proved that the | |
other person was under 18, the defendant is to be taken not to have reasonably | 30 |
believed that that person was 18 or over unless sufficient evidence is adduced | |
to raise an issue as to whether he reasonably believed it. | |
(4) Where in proceedings for an offence under this section— | |
(a) it is proved that the defendant was in a position of trust in relation to | |
the other person by virtue of circumstances within section 22(2), (3), (4) | 35 |
or (5), and | |
(b) it is not proved that he was in such a position of trust by virtue of other | |
circumstances, | |
it is to be taken that the defendant knew or could reasonably have been | |
expected to know of the circumstances by virtue of which he was in such a | 40 |
position of trust unless sufficient evidence is adduced to raise an issue as to | |
whether he knew or could reasonably have been expected to know of those | |
circumstances. | |
(5) A person guilty of an offence under this section is liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | 45 |
months or a fine not exceeding the statutory maximum or both; | |
| |
| |
|
| |
| |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
5 years. | |
20 Abuse of position of trust: causing a child to watch a sexual act | |
(1) A person aged 18 or over (A) commits an offence if— | |
(a) for the purpose of obtaining sexual gratification, he intentionally causes | 5 |
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, | |
(c) A is in a position of trust in relation to B, | |
(d) where subsection (2) applies, A knows or could reasonably be expected | 10 |
to know of the circumstances by virtue of which he is in a position of | |
trust in relation to B, and | |
(e) either— | |
(i) B is under 18 and A does not reasonably believe that B is 18 or | |
over, or | 15 |
(ii) B is under 13. | |
(2) This subsection applies where A— | |
(a) is in a position of trust in relation to B by virtue of circumstances within | |
section 22(2), (3), (4) or (5), and | |
(b) is not in such a position of trust by virtue of other circumstances. | 20 |
(3) Where in proceedings for an offence under this section it is proved that the | |
other person was under 18, the defendant is to be taken not to have reasonably | |
believed that that person was 18 or over unless sufficient evidence is adduced | |
to raise an issue as to whether he reasonably believed it. | |
(4) Where in proceedings for an offence under this section— | 25 |
(a) it is proved that the defendant was in a position of trust in relation to | |
the other person by virtue of circumstances within section 22(2), (3), (4) | |
or (5), and | |
(b) it is not proved that he was in such a position of trust by virtue of other | |
circumstances, | 30 |
it is to be taken that the defendant knew or could reasonably have been | |
expected to know of the circumstances by virtue of which he was in such a | |
position of trust unless sufficient evidence is adduced to raise an issue as to | |
whether he knew or could reasonably have been expected to know of those | |
circumstances. | 35 |
(5) 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 | |
5 years. | 40 |
21 Abuse of position of trust: acts done in Scotland | |
Anything which, if done in England and Wales or Northern Ireland, would | |
constitute an offence under any of sections 17 to 20 also constitutes that offence | |
if done in Scotland. | |
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22 Positions of trust | |
(1) For the purposes of sections 17 to 20, a person (A) is in a position of trust in | |
relation to another person (B) if— | |
(a) any of subsections (2) to (8) applies, or | |
(b) any condition specified in an order made by the Secretary of State is | 5 |
met. | |
(2) This subsection applies if A looks after persons under 18 who are detained in | |
an institution by virtue of a court order or under an enactment, and B is so | |
detained in that institution. | |
(3) This subsection applies if A looks after persons under 18 who are resident in a | 10 |
home or other place in which— | |
(a) accommodation and maintenance are provided by an authority under | |
section 23(2) of the Children Act 1989 (c. 41) or Article 27(2) of the | |
Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), or | |
(b) accommodation is provided by a voluntary organisation under section | 15 |
59(1) of that Act or Article 75(1) of that Order, | |
and B is resident, and is so provided with accommodation and maintenance or | |
accommodation, in that place. | |
(4) This subsection applies if A looks after persons under 18 who are | |
accommodated and cared for in one of the following institutions— | 20 |
(a) a hospital, | |
(b) an independent clinic, | |
(c) a care home, residential care home or private hospital, | |
(d) a community home, voluntary home or children’s home, | |
(e) a home provided under section 82(5) of the Children Act 1989, or | 25 |
(f) a residential family centre, | |
and B is accommodated and cared for in that institution. | |
(5) This subsection applies if A looks after persons under 18 who are receiving | |
education at an educational institution and B is receiving, and A is not | |
receiving, education at that institution. | 30 |
(6) This subsection applies if A is appointed to be the guardian of B under Article | |
159 or 160 of the Children (Northern Ireland) Order 1995. | |
(7) This subsection applies if A is engaged in the provision of services under, or | |
pursuant to anything done under, section 114 of the Learning and Skills Act | |
2000 (c. 21) and, in that capacity, looks after B on an individual basis. | 35 |
(8) This subsection applies if A, as a person who is to report to the court under | |
section 7 of the Children Act 1989 (c. 41) or Article 4 of the Children (Northern | |
Ireland) Order 1995 on matters relating to the welfare of B, regularly has | |
unsupervised contact with B alone (whether face to face or by any other | |
means). | 40 |
(9) This subsection applies if A is a personal adviser appointed for B under— | |
(a) section 23B(2) of, or paragraph 19C of Schedule 2 to, the Children Act | |
1989, or | |
(b) Article 34A(10) or 34C(2) of the Children (Northern Ireland) Order | |
1995, | 45 |
and, in that capacity, looks after B on an individual basis. | |
| |
| |
|
| |
| |
(10) This subsection applies if— | |
(a) B is subject to a care order, a supervision order or an education | |
supervision order, and | |
(b) in the exercise of functions conferred by virtue of the order on an | |
authorised person or the authority designated by the order, A looks | 5 |
after B on an individual basis. | |
(11) This subsection applies if A— | |
(a) is an officer of the Service appointed for B under section 41(1) of the | |
Children Act 1989 (c. 41), | |
(b) is appointed a children’s guardian of B under rule 6 or rule 18 of the | 10 |
Adoption Rules 1984 (S.I. 1984/265), or | |
(c) is appointed to be the guardian ad litem of B under rule 9.5 of the | |
Family Proceedings Rules 1991 (S. I. 1991/1247) or under Article 60(1) | |
of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), | |
and, in that capacity, regularly has unsupervised contact with B alone (whether | 15 |
face to face or by any other means). | |
(12) This subsection applies if— | |
(a) B is subject to requirements imposed by or under an enactment on his | |
release from detention for a criminal offence, or is subject to | |
requirements imposed by a court order made in criminal proceedings, | 20 |
and | |
(b) A looks after B on an individual basis in pursuance of the requirements. | |
23 Positions of trust: interpretation | |
(1) The following provisions apply for the purposes of section 22. | |
(2) Subject to subsection (3), a person looks after persons under 18 if he is regularly | 25 |
involved in caring for, training, supervising or being in sole charge of such | |
persons. | |
(3) A person (A) looks after another person (B) on an individual basis if— | |
(a) A is regularly involved in caring for, training or supervising B, and | |
(b) in the course of his involvement, A regularly has unsupervised contact | 30 |
with B alone (whether face to face or by any other means). | |
(4) A person receives education at an educational institution if— | |
(a) he is registered or otherwise enrolled as a pupil or student at the | |
institution, or | |
(b) he receives education at the institution under arrangements with | 35 |
another educational institution at which he is so registered or otherwise | |
enrolled. | |
(5) In section 22— | |
“authority”— | |
(a) in relation to England and Wales, means a local authority; | 40 |
(b) in relation to Northern Ireland, has the meaning given by | |
Article 2(2) of the Children (Northern Ireland) Order 1995 (S.I. | |
1995/755 (N.I. 2)); | |
“care home” means an establishment which is a care home for the | |
purposes of the Care Standards Act 2000 (c. 14); | 45 |
“care order” has— | |
| |
| |
|
| |
| |
(a) in relation to England and Wales, the same meaning as in the | |
Children Act 1989 (c. 41), and | |
(b) in relation to Northern Ireland, the same meaning as in the | |
Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)); | |
“children’s home” has— | 5 |
(a) in relation to England and Wales, the meaning given by section | |
1 of the Care Standards Act 2000 (c. 14), and | |
(b) in relation to Northern Ireland, the meaning that would be | |
given by Article 9 of the Health and Personal Social Services | |
(Quality, Improvement and Regulation) (Northern Ireland) | 10 |
Order 2003 (S.I. 2003/431 (N.I. 9)) (“the 2003 Order”) if in | |
paragraph (4) of that Article sub-paragraphs (d), (f) and (g) | |
were omitted; | |
“community home” has the meaning given by section 53 of the Children | |
Act 1989; | 15 |
“education supervision order” has— | |
(a) in relation to England and Wales, the meaning given by section | |
36 of the Children Act 1989, and | |
(b) in relation to Northern Ireland, the meaning given by Article | |
49(1) of the Children (Northern Ireland) Order 1995; | 20 |
“hospital”— | |
(a) in relation to England and Wales, means a hospital within the | |
meaning given by section 128(1) of the National Health Service | |
Act 1977 (c. 49), or any other establishment which is a hospital | |
within the meaning given by section 2(3) of the Care Standards | 25 |
Act 2000; | |
(b) in relation to Northern Ireland, means a hospital within the | |
meaning given by Article 2(2) of the Health and Personal Social | |
Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. | |
14)), or any other establishment which is a hospital within the | 30 |
meaning given by Article 2(2) of the 2003 Order; | |
“ independent clinic” has— | |
(a) in relation to England and Wales, the meaning given by section | |
2 of the Care Standards Act 2000; | |
(b) in relation to Northern Ireland, the meaning given by Article | 35 |
2(2) of the 2003 Order; | |
“private hospital” has the meaning given by Article 90(2) of the Mental | |
Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)); | |
“residential care home” means an establishment which is a residential | |
care home for the purposes of the 2003 Order; | 40 |
“residential family centre” has the meaning given by section 22 of the | |
Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3); | |
“supervision order” has— | |
(a) in relation to England and Wales, the meaning given by section | |
31(11) of the Children Act 1989, and | 45 |
(b) in relation to Northern Ireland, the meaning given by Article | |
49(1) of the Children (Northern Ireland) Order 1995; | |
“voluntary home” has— | |
(a) in relation to England and Wales, the meaning given by section | |
60(3) of the Children Act 1989, and | 50 |
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| |
|
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| |
(b) in relation to Northern Ireland, the meaning given by Article | |
74(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/ | |
755 (N.I. 2)). | |
24 Sections 17 to 20: marriage exception | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | 5 |
sections 17 to 20 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 | |
lawfully married at the time. | |
25 Sections 17 to 20: sexual relationships which pre-date position of trust | 10 |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 17 to 20 against another person (B) is not an offence under that section | |
if, immediately before the position of trust arose, a sexual relationship existed | |
between A and B. | |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | 15 |
B would have been unlawful. | |
(3) In proceedings for an offence under any of sections 17 to 20 it is for the | |
defendant to prove that such a relationship existed at that time. | |
Familial child sex offences | |
26 Sexual activity with a child family member | 20 |
(1) A person (A) commits an offence if— | |
(a) he intentionally touches another person (B), | |
(b) the touching is sexual, | |
(c) the relation of A to B is within section 28, | |
(d) A knows or could reasonably be expected to know that his relation to B | 25 |
is of a description falling within that section, and | |
(e) either— | |
(i) B is under 18 and A does not reasonably believe that B is 18 or | |
over, or | |
(ii) B is under 13. | 30 |
(2) Where in proceedings for an offence under this section it is proved that the | |
other person was under 18, the defendant is to be taken not to have reasonably | |
believed that that person was 18 or over unless sufficient evidence is adduced | |
to raise an issue as to whether he reasonably believed it. | |
(3) Where in proceedings for an offence under this section it is proved that the | 35 |
relation of the defendant to the other person was of a description falling within | |
section 28, it is to be taken that the defendant knew or could reasonably have | |
been expected to know that his relation to the other person was of that | |
description unless sufficient evidence is adduced to raise an issue as to whether | |
he knew or could reasonably have been expected to know that it was. | 40 |
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