Sexual Offences Act 2003

The Sexual Offences Act 2003 (c 42) is an Act of the Parliament of the United Kingdom.

It replaced older sexual offences laws with more specific and explicit wording. It also created several new offences such as non-consensual voyeurism, assault by penetration, causing a child to watch a sexual act, and penetration of any part of a corpse.

Major changes

Part I of the Act makes many changes to the sexual crimes laws in England and Wales (and to some extent Northern Ireland), almost completely replacing the Sexual Offences Act 1956.

Rape has been redefined from the Sexual Offences Act 1956 (amended in 1976 and 1994) to read:

A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.^[4]

Rape previously did not include penetration of the mouth. The Act also changes the way in which lack of consent may be proved, and section 75 and 76 of the Act list circumstances in which lack of consent may be presumed.

A new offence of assault by penetration is defined as penetration with any object to the anus or vagina.

The Act also now includes provisions against sex tourism. People who travel abroad with the intent to commit sexual offences can have their passports revoked or travel restricted. However, this part of the Act has yet to be enforced by a test case in the UK and has been criticised by numerous high-profile litigants due to its complexities.

Group homosexual sex has been decriminalised, in that Schedule 6 of the 2003 Act caused section 12 of the Sexual Offences Act 1956 to be omitted, removing the offence of homosexual sex "when more than two persons take part or are present".

Part II of the Act also consolidated the provisions of the Sex Offenders Act 1997 on registration of sex offenders and protective orders. These provisions generally apply throughout the United Kingdom.^[5][6]

Section 45(2) changed the definition of "child" in the Protection of Children Act 1978 (which applies to child pornography) from a person under 16 to a person under 18. Section 45 also inserted section 1A of the 1978 Act, and section 160A of the Criminal Justice Act 1988, which create defences which apply where the photograph showed the child alone or with the defendant (but not if it showed any other person), the defendant proves that the photograph was of the child aged 16 or over and that he and the child were married or lived together as partners in an enduring family relationship, and certain other conditions are met.

The Sexual Offences Act 2003 creates further offences relating to prostitution.

• Sections 47 to 50 prohibit child prostitution.
• Sections 52 and 53 prohibit pimping for financial gain.
• Sections 57 to 59 create offences relating to sex trafficking.
• The Act also inserted a new section 33A into the Sexual Offences Act 1956, which relates to brothels.

A new section 51A was inserted by the Policing and Crime Act 2009, which prohibits soliciting.^[7] This came into effect on 1 April 2010.

"Consent"

The Act made significant changes to the legal definition of consent.

Sections 64 and 65 relate to sexual relationships within the family. Section 64 prohibits penetrating any other family member, and section 65 prohibits consenting to such sexual activities. Initially the legislation did not include uncles, aunts, nieces and nephews but after some debate these were written into the provision.^[8]

Section 74 states that:"For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."^[9]

Section 75

Section 75 of the Act introduces a number of evidential presumptions under which if the prosecution proves certain circumstances existed at the time of intercourse or other relevant sexual act "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 as to whether he reasonably believed it."^[10]

Section 76

Section 76 of the Act introduces two conclusive presumptions. These are where the defendant deceives the victim to the nature or purpose of relevant act (i.e. fraud) and where the defendant induces the victim to consent by impersonating someone known to the complainant. When this is proven, the law states that it is then conclusively presumed that the defendant did not believe that the complainant consented to the relevant act, and that the complainant did not consent to the relevant act.

Dual criminality

Section 72 provides differing levels of dual criminality for specified offences according to the UK citizenship status of an offender. For UK nationals, acts outside the UK that would amount to an offence in the UK can be prosecuted as if they had been done in the UK, regardless of whether the acts are lawful where they were done. For UK residents, acts outside the United Kingdom have to constitute an offence in the country where they are committed, in order to be prosecuted in Britain.

Criticisms

The Act has faced criticism on several grounds, the most controversial of which is the criminalising of various common behaviours, such as laws which, on the face of it, outlaw consensual "sexual hugging" in public places or by underage persons, even when both participants are under age, followed by the issue of guidance notes which countermand this, saying they should almost never be prosecuted.^[11][12]

The Home Office says legalising consensual sexual activity between children "would damage a fundamental plank in our raft of child protection measures".^[11] A spokesman said, "We are not prepared to do this. We accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it. We are putting safeguards in place to ensure that these cases, which are not in the public interest, are not prosecuted - by amending guidance to the police and Crown Prosecution Service".^[11]

Criticism comes from Action on Rights for Children: "Laws should mean what they say. It's astonishing that the government could consider legislation with the prior intent of issuing guidance to countermand it. I worry about the message it sends to young people - it seems to say that sometimes the law means what it says and sometimes it doesn't.".^[11] Spokesperson Terri Dowty also fears that it could lead to unreasonable private prosecutions, such as by angry parents who don't like their child's boyfriend or girlfriend.^[11]

Professor Nicola Lacey of the London School of Economics comments: "What the Home Office would say was that they wanted to use the criminal law for symbolic impact, to say that it's not a good thing for kids to be having sex. My counter-argument is that the criminal law is too dangerous a tool to be used for symbolic purposes. With this on the statute book, it will give police and prosecutors a lot of discretion. It could be used as a way of controlling kids who perhaps the police want to control for other reasons. Kids who perhaps are a nuisance or who belong to a group who attract the attention of the police in some way.".^[11]

Another criticism given is that the act excludes "made to penetrate" (the act of causing an unconsenting individual to penetrate you sexually) from the offence of rape.

Transition from old to new law

The 2003 Act repealed most sections of the Sexual Offences Act 1956 and several other statutes dealing with sexual offences. Section 141 of the Act gave the Home Secretary the power to make rules by statutory instrument to deal with the transition from the old to the new laws, to cover the situation where a defendant is charged with offences which overlap the commencement date of 1 May 2004. However no such "transitional provisions" were ever made. This resulted in cases where, when a defendant was accused of committing a sexual offence but the prosecution could not prove the exact date, and the offence could have been committed either before or after 1 May 2004, he had to be found not guilty, regardless of how strong the evidence against him was. This was because a sexual offence committed before 1 May was an offence under the old law, but an offence committed on or after that date was a different offence under the new law. For example, an assault might either be indecent assault under the 1956 Act, or the new offence of sexual assault under the 2003 Act, depending on when it happened, but it could not be both. If the prosecution could not prove beyond reasonable doubt which offence had been committed, then the defendant could not be convicted of either.

The Court of Appeal first dealt with this problem in December 2005, when the prosecution appealed against the decision of a judge to order a jury to acquit a defendant for precisely that reason. Dismissing the appeal, Lord Justice Rose said: "If a history of criminal legislation ever comes to be written it is unlikely that 2003 will be identified as a year of exemplary skill in the annals of Parliamentary drafting."^[13]

This situation was not resolved until Parliament passed section 55 of the Violent Crime Reduction Act 2006, which came into force in February 2007.

Extent and repeals

The Act applies to England and Wales only except for the provisions listed in s.142(2) of the Act which also apply to Northern Ireland and the provisions listed in s.142(3) of the Act which also apply to Scotland. The Act repealed the Sex Offenders Act 1997 in its entirety, and almost all of the Sexual Offences Act 1956, which until then had been the main legislation for sexual offences. It also repealed much of the Sexual Offences Act 1967 which had discriminated heavily against homosexual and bisexual men, leaving it largely gutted of statutory effect.

See also

• Sexual Offences Act
• Sexual offences in the United Kingdom
• Violent and Sex Offender Register
• Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

Notes

References

• Kim Stevenson, Anne Davies, and Michael Gunn, Blackstone's Guide to the Sexual Offences Act 2003 (OUP 2003)
• Guidance on part 2 of the Sexual Offences Act 2003

External links

• "Teenage kissing: The new sex crime?" by Giles Wilson, BBC, 30 April 2004
• Action on Rights of Children