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Sexual Offences Act 2003

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

Sexual Offences Act 2003[1]
Long titleAn Act to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes.
Citation2003 c. 42
Territorial extent United Kingdom
Dates
Royal assent20 November 2003
Commencement1 May 2004,[2] except that sections 138 and 141 to 143 came into force on 20 November 2003[3]
Other legislation
Relates toSexual Offences (Scotland) Act 2009
Status: Amended
Text of statute as originally enacted
Revised text of statute as amended

It partly replaced the Sexual Offences Act 1956 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. It defines and sets legal guidelines for rape in English law. It is also the main legislation dealing with child sexual abuse.

The corresponding legislation in Scotland is the Sexual Offences (Scotland) Act 2009 and in Northern Ireland the Sexual Offences (Northern Ireland) Order 2008.

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

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.

Assault by penetration

Section 2 creates the offence of Assault by penetration.[5] This offence is set out separately because rape is defined as requiring penile penetration.[4] Therefore, non-consensual sexual penetration of the vagina or anus with either another part of the body (such as the fingers), or an object, must be prosecuted under this section. Section 2 closely mirrors section 1's definition of rape, including the same maximum sentence (life imprisonment), but does not include penetration of the mouth, and carries the additional requirement that "the penetration is sexual",[6] i.e. performed for the purpose of either the offender's sexual gratification or the victim's sexual humiliation.

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.[7]

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."[8]

Section 75

Section 75[9] of the Act introduced a number of evidential presumptions, which prove lack of consent unless the defence can provide sufficient, contrary evidence that the claimant did consent. These presumptions require the relevant act to have taken place at the same time as one of six circumstances existed, about which the defendant was aware.

The circumstances are (summarised):

a) violence was used or threatened to be used against the complainant, during or immediately before the act

b) violence was used or threatened to be used against another person, during or immediately before the act

c) claimant was unlawfully detained

d) claimant was asleep/unconscious

e) claimant had a physical disability which prevented them from communicating consent

f) claimant was able to be overpowered/ subdued by a substance administered to them against their will

Section 76

Section 76[10] of the Act introduces two conclusive presumptions. These are:

a) where the defendant deceives the victim to the nature or purpose of the relevant act (i.e. fraud)

b) where the defendant induces the victim to consent by impersonating someone known to the complainant.

When either is proven, the law states that it is conclusively presumed that the complainant did not consent to the act, and the defendant was aware of the lack of consent. This cannot be rebutted by any contrary evidence, as is possible with section 75.

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.

Other provisions

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.

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.[11][12]

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.

A new section 51A was inserted by the Policing and Crime Act 2009, which prohibits soliciting.[13] This came into effect on 1 April 2010.

Criticisms

The Act has faced criticism on several grounds.

Consent

The definition of consent (criminal law) has caused some academics to raise concerns about the way consent is interpreted. Bethany Simpson has suggested the terms "freedom"[14] and "choice"[14] used to define consent are too complex for the courts to apply.[15]

Underage persons

One of the more controversial parts of the Act involves 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.[16][17]

The Home Office stated that legalising consensual sexual activity between children "would damage a fundamental plank in our raft of child protection measures.".[16] 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."[16]

Criticism came 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."[16]

Professor Nicola Lacey of the London School of Economics commented: "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."[16]

Lack of transitional provisions

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 a defendant was accused of committing a sexual offence but the prosecution could not prove the exact date of the offence, which could have been committed either before or after 1 May 2004. In these cases, the defendant had to be found not guilty, regardless of how strong the evidence against them 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."[18]

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.

Amendments

The Voyeurism (Offences) Act 2019 amended the Sexual Offences Act 2003 to make upskirting a specific offence in England and Wales.[19]

See also

Notes

  1. ^ The citation of this Act by this short title is authorised by section 143 of this Act.
  2. ^ The Sexual Offences Act 2003, section 141; the Sexual Offences Act 2003 (Commencement) Order 2004 (SI 2004/874), article 2; the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 (SSI 2004/138), article 2.
  3. ^ These sections came into force on the date of royal assent because no other date was specified: The Interpretation Act 1978, section 4(b)
  4. ^ a b "Sexual Offences Act 2003". legislation.gov.uk. Retrieved 17 April 2018.
  5. ^ "Sexual Offences Act 2003". legislation.gov.uk. Retrieved 17 April 2018.
  6. ^ Section 2 (1) (b)
  7. ^ "Roffee, J. A. (2014). No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights". doi:10.1093/hrlr/ngu023.
  8. ^ "Sexual Offences Act 2003". legislation.gov.uk.
  9. ^ "Sexual Offences Act 2003". legislation.gov.uk.
  10. ^ "Sexual Offences Act 2003". legislation.gov.uk.
  11. ^ "Sexual Offences Act 2003". legislation.gov.uk. Retrieved 17 April 2018.
  12. ^ Part 2 (Notification and orders) extends to Northern Ireland and with some exceptions to Scotland.
  13. ^ Section 19, Policing and Crime Act 2009
  14. ^ a b "Sexual Offences Act 2003".
  15. ^ Simpson, Bethany (1 April 2016). "Why has the Concept of Consent Proven So Difficult to Clarify?". The Journal of Criminal Law. 80 (2): 97–123. doi:10.1177/0022018316639104. S2CID 147168214 – via SAGE Journals.
  16. ^ a b c d e Wilson, Giles (30 April 2004). "Teenage kissing: The new sex crime?". BBC News.
  17. ^ "See CPS Guidance". cps.gov.uk. Retrieved 17 April 2018.
  18. ^ R v A [2005] EWCA Crim 3533, [2006] 1 Cr App R 28; The Times, 5 January 2006
  19. ^ Ministry of Justice; Frazer, Lucy (12 February 2019). "'Upskirting' now a specific crime as bill receives Royal Assent". gov.uk (Press release). Government Digital Service. Retrieved 12 February 2019.

References

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

External links

  •   The full text of Sexual Offences Act 2003 at Wikisource
  • Sexual Offences Act 2003 at legislation.gov.uk
  • "Teenage kissing: The new sex crime?" by Giles Wilson, BBC, 30 April 2004
  • Action on Rights of Children

sexual, offences, 2003, parliament, united, kingdom, parliament, united, kingdomlong, titlean, make, provision, about, sexual, offences, their, prevention, protection, children, from, harm, from, other, sexual, acts, connected, purposes, citation2003, 42territ. The Sexual Offences Act 2003 c 42 is an Act of the Parliament of the United Kingdom Sexual Offences Act 2003 1 Parliament of the United KingdomLong titleAn Act to make new provision about sexual offences their prevention and the protection of children from harm from other sexual acts and for connected purposes Citation2003 c 42Territorial extent United KingdomDatesRoyal assent20 November 2003Commencement1 May 2004 2 except that sections 138 and 141 to 143 came into force on 20 November 2003 3 Other legislationRelates toSexual Offences Scotland Act 2009Status AmendedText of statute as originally enactedRevised text of statute as amendedIt partly replaced the Sexual Offences Act 1956 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 It defines and sets legal guidelines for rape in English law It is also the main legislation dealing with child sexual abuse The corresponding legislation in Scotland is the Sexual Offences Scotland Act 2009 and in Northern Ireland the Sexual Offences Northern Ireland Order 2008 Contents 1 Major changes 1 1 Rape 1 2 Assault by penetration 1 3 Consent 1 3 1 Section 75 1 3 2 Section 76 1 4 Dual criminality 1 5 Other provisions 2 Criticisms 2 1 Consent 2 2 Underage persons 2 3 Lack of transitional provisions 3 Extent and repeals 4 Amendments 5 See also 6 Notes 7 References 8 External linksMajor changes EditPart 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 Edit 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 Assault by penetration Edit Section 2 creates the offence of Assault by penetration 5 This offence is set out separately because rape is defined as requiring penile penetration 4 Therefore non consensual sexual penetration of the vagina or anus with either another part of the body such as the fingers or an object must be prosecuted under this section Section 2 closely mirrors section 1 s definition of rape including the same maximum sentence life imprisonment but does not include penetration of the mouth and carries the additional requirement that the penetration is sexual 6 i e performed for the purpose of either the offender s sexual gratification or the victim s sexual humiliation Consent Edit 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 7 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 8 Section 75 Edit Section 75 9 of the Act introduced a number of evidential presumptions which prove lack of consent unless the defence can provide sufficient contrary evidence that the claimant did consent These presumptions require the relevant act to have taken place at the same time as one of six circumstances existed about which the defendant was aware The circumstances are summarised a violence was used or threatened to be used against the complainant during or immediately before the actb violence was used or threatened to be used against another person during or immediately before the actc claimant was unlawfully detainedd claimant was asleep unconsciouse claimant had a physical disability which prevented them from communicating consentf claimant was able to be overpowered subdued by a substance administered to them against their will Section 76 Edit Section 76 10 of the Act introduces two conclusive presumptions These are a where the defendant deceives the victim to the nature or purpose of the relevant act i e fraud b where the defendant induces the victim to consent by impersonating someone known to the complainant When either is proven the law states that it is conclusively presumed that the complainant did not consent to the act and the defendant was aware of the lack of consent This cannot be rebutted by any contrary evidence as is possible with section 75 Dual criminality Edit 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 Other provisions Edit 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 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 11 12 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 13 This came into effect on 1 April 2010 Criticisms EditThe Act has faced criticism on several grounds Consent Edit The definition of consent criminal law has caused some academics to raise concerns about the way consent is interpreted Bethany Simpson has suggested the terms freedom 14 and choice 14 used to define consent are too complex for the courts to apply 15 Underage persons Edit One of the more controversial parts of the Act involves 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 16 17 The Home Office stated that legalising consensual sexual activity between children would damage a fundamental plank in our raft of child protection measures 16 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 16 Criticism came 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 16 Professor Nicola Lacey of the London School of Economics commented 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 16 Lack of transitional provisions Edit This section does not cite any sources Please help improve this section by adding citations to reliable sources Unsourced material may be challenged and removed August 2022 Learn how and when to remove this template message 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 a defendant was accused of committing a sexual offence but the prosecution could not prove the exact date of the offence which could have been committed either before or after 1 May 2004 In these cases the defendant had to be found not guilty regardless of how strong the evidence against them 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 18 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 EditThe 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 Amendments EditThe Voyeurism Offences Act 2019 amended the Sexual Offences Act 2003 to make upskirting a specific offence in England and Wales 19 See also EditSexual 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 Operation CathedralNotes Edit The citation of this Act by this short title is authorised by section 143 of this Act The Sexual Offences Act 2003 section 141 the Sexual Offences Act 2003 Commencement Order 2004 SI 2004 874 article 2 the Sexual Offences Act 2003 Commencement Scotland Order 2004 SSI 2004 138 article 2 These sections came into force on the date of royal assent because no other date was specified The Interpretation Act 1978 section 4 b a b Sexual Offences Act 2003 legislation gov uk Retrieved 17 April 2018 Sexual Offences Act 2003 legislation gov uk Retrieved 17 April 2018 Section 2 1 b Roffee J A 2014 No Consensus on Incest Criminalisation and Compatibility with the European Convention on Human Rights doi 10 1093 hrlr ngu023 Sexual Offences Act 2003 legislation gov uk Sexual Offences Act 2003 legislation gov uk Sexual Offences Act 2003 legislation gov uk Sexual Offences Act 2003 legislation gov uk Retrieved 17 April 2018 Part 2 Notification and orders extends to Northern Ireland and with some exceptions to Scotland Section 19 Policing and Crime Act 2009 a b Sexual Offences Act 2003 Simpson Bethany 1 April 2016 Why has the Concept of Consent Proven So Difficult to Clarify The Journal of Criminal Law 80 2 97 123 doi 10 1177 0022018316639104 S2CID 147168214 via SAGE Journals a b c d e Wilson Giles 30 April 2004 Teenage kissing The new sex crime BBC News See CPS Guidance cps gov uk Retrieved 17 April 2018 R v A 2005 EWCA Crim 3533 2006 1 Cr App R 28 The Times 5 January 2006 Ministry of Justice Frazer Lucy 12 February 2019 Upskirting now a specific crime as bill receives Royal Assent gov uk Press release Government Digital Service Retrieved 12 February 2019 References EditKim 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 2003External links Edit The full text of Sexual Offences Act 2003 at Wikisource Sexual Offences Act 2003 at legislation gov uk Teenage kissing The new sex crime by Giles Wilson BBC 30 April 2004 Action on Rights of Children Retrieved from https en wikipedia org w index php title Sexual Offences Act 2003 amp oldid 1132172906, wikipedia, wiki, book, books, library,

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