Writing to your MP

(PART 12)

Section 11: Engaging in sexual activity in the presence of a child

The elements of the offence are:

aged 18 or over intentionally engages in sexual activity

(A's) purpose is to obtain sexual gratification when (B) is present or can observe
(A) knows or believes that (B) is aware of the activity or intends that (B) should be aware
Either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
(B) is under 13.

Section 12: Causing a child to watch a sexual act

The elements of the offence are:

(A), aged 18 or over, intentionally causes a child under 16 (B) to watch another person engaging in an activity, or to look at an image of any person engaging in an activity
(A's) purpose is to obtain sexual gratification
the activity is sexual, and
either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
(B) is under 13.

In R v Abdullahi (Osmund) Mohammed CA (Crim Div) [2006] EWCA Crim 2060, the Court of Appeal considered the meaning of 'sexual gratification'. Dismissing the appeal the Court of Appeal held there was nothing in the language of s. 12 of the Act to suggest that sexual gratification must be taken immediately, or that it cannot extend to a longer term plan to obtain further or greater sexual gratification in the form of the eventual working out of a particular sexual fantasy or activity involving the child.

(PART 12)

(PART 11)

Offences against children under 16 (sections 9 - 13)

The 2003 Act provides that the age of consent is 16. Sections 9-13 clarify that any sexual activity involving consenting children under 16 is unlawful.

Sections 9-12 cover adult defendants.

Section 9: Sexual activity with a child

The elements of the offence are:

(A) aged 18 or over intentionally touches (B)
the touching is sexual, and
either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
(B) is under 13.

Section 10: Causing or inciting a child to engage in sexual activity

The elements of the offence are:

(A) aged 18 or over intentionally causes or incites another person (B) to engage in an activity
the activity is sexual, and
either (B) is under 16 and (A) does not reasonably believe that B is 16 or over, or
(B) is under 13.

(PART 11)

(PART 10)

Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her/ his age was in fact made;

The nature of the activity e.g. penetrative or non-penetrative activity;

The sexual and emotional maturity of the parties and any emotional or physical effects resulting from the conduct; and

The likely impact of any prosecution on the parties.

In R v G and the Secretary State for the Home Department (above), G was a 15 year old boy who had been charged with section 5 rape of a girl aged 12 years. The defence argued that a charge under section 5 amounted to a disproportionate interference with the defendant's right to privacy under Article 8. On the facts of the case, they argued, section 5 was a disproportionate response to any legitimate aim that the government was pursuing, and that a charge under Section 9 SOA 2003 (sexual activity with a child) or Section 13 SOA 2003 (sex offences on a child that are committed by a child or young person) would have been correct.

The Court held Article 8.1 may be infringed if a child is prosecuted for an offence under Section 5 and such interference may not be justified under Article 8.2. Any infringement will turn on the individual facts of each case and in this matter, the initial Section 5 charge was correct and there was no duty on the judge to substitute a Section 13 charge.

However, in many cases the issue of consent will not be resolved until after a Newton hearing has been held. If the facts are found to be not as serious as initially presented to the court, the judge can pass an appropriate sentence. This will ensure that there is no illegal interference with a defendant's Article 8 rights.

(PART 10)

(PART 9)

Furthermore prosecutors must consider the interests of the youth when deciding whether it is in the public interest to prosecute (paragraph 4.12 (d) of the Code for Crown Prosecutors).

In reaching the decision to prosecute a youth for a sexual offence, prosecutors should ensure that they not only apply the Code in conjunction with any relevant CPS policy on youth offenders and the Sexual Offences Act, but that they record that they have done so in their review of the case.

Factors: whether or not to prosecute young defendants

In deciding whether or not to prosecute, prosecutors should have careful regard to the factors below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. The factors are:

The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led him or her to commit the offence;

The relevant ages and levels of maturity of the parties, i.e. the same or no significant disparity in age;

Whether the complainant entered into sexual activity willingly, i.e. did the complainant understand the nature of his or her actions and that she/he was able to communicate his or her willingness freely;

Parity between the parties in regard to sexual, physical, emotional and educational development;

The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;

Whether there is any element of exploitation, coercion, threat, deception, grooming, seduction, manipulation or breach of trust in the relationship;

(PART 9)

(PART 8)

There are two important points to note:

(1) The Directors Guidance on Charging (fourth edition: January 2011) states that offences under the Sexual Offences Act 2003 committed by or upon persons under the age of 18 years must always be referred to the CPS for a charging decision, whether admitted or not
(2) Youth Offender Specialists should review all files involving youth offenders and take all major decisions in relation to those cases, in particular, whether or not a prosecution should take place.
In addition:

Chief Crown Prosecutors must be notified of any case where at least one of the complainants and at least one of the suspects are under the age of 13. This includes cases which are diverted from prosecution, whether on evidential or public interest grounds.

All such cases must be reviewed by a prosecutor who is both a rape specialist and a youth specialist. All advocates conducting these cases must have a rape specialism and should also have a youth specialism.

Where a sexual offence committed by a child passes the evidential stage of the Full Code Test, it is essential that when considering the public interest, prosecutors have as much information as possible from sources including the police, Youth Offending Teams (YOTs), and any professionals assisting those agencies, about the defendants background and the circumstances surrounding the alleged offence, as well as any information known about the victim. Failure to do so may lead to judicial review of any decision R v Chief Constable of Kent ex parte L and R v DPP ex parte B [1991] 93 Cr App R 416.

Views expressed by the victim, and where appropriate the victim's family, should be taken into account in accordance with the Code.

(PART 8)

(PART 7)

Code for Crown Prosecutors - considerations

The 2003 Act protects all children from engaging in sexual activity at an early age, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent. The intention behind sections 5-8 is to provide maximum protection to very young children.

Code for Crown Prosecutors - Adult defendant

A prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity in sections 5-8, a prosecution will normally be required.

-Code for Crown Prosecutors - Child defendant (under 18)_

See CPS Legal Guidance on Youth Offenders including sections on:

Principles guiding the decision to prosecute
Sexual Offences and Child Abuse by Young Offenders
Rape and other offences against children under 13 (sections 5 to 8 Sexual Offences Act 2003)
Child sex offences committed by children or young persons
Familial sexual offences committed by young people
See also Rape and Sexual Offences: Chapter 11.

The overriding public concern is to protect children. It was not Parliament's intention to punish children unnecessarily or for the criminal law to intervene where it is wholly inappropriate. During the passage of the bill, Lord Falconer said:

"Our overriding concern is to protect children, not to punish them unnecessarily. Where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest. Nor would it be in the best interests of the child ..."

(PART 7)

(PART 6)

Key points

There is no defence of mistaken reasonable belief in age of the complainant.

It is a defence against aiding, abetting or counselling an offence (except section 8) if the purpose is to:

Protect the child from sexually transmitted infection
Protect the physical safety of the child
Protect the child from becoming pregnant
Promote the child's emotional well-being by the giving of advice unless the purpose is to obtain sexual gratification or to cause or encourage the relevant sexual act (section 73).

Section 8 covers the wide range of activity as in section 4, but also covers the situation where a person incites (encourages) the child to take part in the sexual activity, even if the activity itself does not take place.

Penalties

Sections 5 and 6 are indictable only and carry a maximum sentence of life imprisonment.

Section 7 is triable either way and carries a maximum sentence of 14 years on indictment.

Section 8 is indictable only and carries a maximum sentence of life imprisonment if the activity involves:

Penetration of (B's) anus or vagina;
Penetration of (B's) mouth with a person's penis;
Penetration of a person's anus or vagina by (B) or
Penetration of a person's mouth with (B's) penis.

Section 8 creates two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie[1984] AC 463.

In drafting charges and indictments, prosecutors should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.

Non-penetrative activity is either way and carries a maximum sentence of 14 years on indictment.

In determining the level of sentence, the same degree of seriousness should apply whether a person 'causes' or 'incites' the activity.

(PART 6)

(PART 5)

Note: R v G [2008] UKHL 37; [2009] Offences of strict liability are compatible with A6.2 ECHR.

Section 5: Rape of a child under 13

Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.
In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing. On no account should a section 1 rape count be added as an alternative.

When dealing with a Newton hearing in such circumstances, prosecutors must comply with the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2009]. See also Rape and Sexual Offences: Chapter 18 and Sentencing - Overview - Newton hearings

Section 6: Assault of a child under 13 by penetration

Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina, or anus of a child under 13 with a part of his body, or with anything else.

A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.

Section 7: Sexual assault of a child under 13

Section 7 makes it an offence for a person to touch a child under 13 sexually.

Section 8: Causing or inciting a child under 13 to engage in sexual activity

Section 8 makes it an offence for a person intentionally to cause or incite a child (B) under the age of 13 to engage in sexual activity.

(PART 5)

(PART 4)

SEXUAL OFFENCES ACT 2003

Offences Against Children

The 2003 Act identifies three categories of offences against children of different age. They are:

Offences against those under 13;
Offences against those under 16;
Offences against those under 18.

Offences against children under 13 (sections 5 - 8)

Introduction

Sections 5-8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.

The under-13 offences overlap to a very significant extent with the child sex offences (ss. 9 to 15 of the 2003 Act), which are designed to protect children under 16. However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect such children. This is to ensure the availability of the higher maximum penalties for the under-13 offences.

During the passage of the Sexual Offences bill, Lord Falconer said:
"A fundamental justification for the under-13 offence is the age and vulnerability of the victim. We do not think it is right that where the victim is 12 or under question of consent should arise. There will be many cases where it would be utterly invidious for a 12 year old or under to have to give evidence in relation to consent."

These are offences of strict liability as to age. The prosecution has to prove only two facts. First, the intentional sexual activity and second the age of the complainant at the date of the sexual activity, e.g. a certified copy of a birth certificate together with evidence of identity.

(PART 4)

(PART 3)

CPS

www.cps.gov.uk/sexual-offences

Child Sexual Abuse

"A child is defined as any person under the age of 18. Child sexual abuse involves forcing or inciting a child to take part in sexual activity, whether or not the child is aware of what is happening and not necessarily involving a high level of violence.

This may involve physical contact including rape or oral sex, or non-penetrative acts such as masturbation, kissing, rubbing and touching outside of clothing. They may also include non-contact activities, such as involving children in looking at, or in the production of, sexual images, watching sexual activities, encouraging children to behave in sexually inappropriate ways, or exploiting or grooming a child in preparation for abuse (including via the internet) or prostitution. Child sexual abuse can be committed by both men and women, or other children."

(PART 3)

(PART 2)

That last is written for adults!

"Consent means giving permission for something to happen or agreeing to do something and being comfortable with that decision. It doesn’t matter what gender you are, or whether you’re straight, gay or bisexual, if you’re planning to do anything sexual then both of you must give consent.

Consent has to be given freely and no one can be made to consent to something. It’s not consent if someone does something because they feel like they have to. You can also never assume that someone is giving consent – you have to be sure.

Consent is an essential part of healthy relationships and it’s really important to know what it is and the many ways to spot it. Both you and the person you’re with always need to consent before sex or any intimate activity.

If you want to do something sexual with your partner, the responsibility lies with you to check for consent, not with your partner to say ‘no’ if they don’t want to."

No mention anywhere of Sexual Offences Against Children under the Act!

(PART 2)

On a horrifyingly related matter, sex abuse in schools:

No Age of Consent for Sex in new DfE Statutory Guidance for "Keeping Children Safe in Schools"

twitter.com/SuspendDisbeli2/status/1176192853925666816

"New "Statutory guidance Keeping children safe in education" Sept 2019 covers sexual abuse, defines sexual offences as per Sexual Offences Act + explains consent but omits any mention of specific sexual offences against children as per act"
1/2

plus could not find any mention of age of consent. Gives impression that child of any age may consent to eg. oral, vaginal, anal penetration."
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/828587/Keeping_children_safe_in_education_part_one.pdf
The footnote for further info on consent links to
www.disrespectnobody.co.uk/consent/what-is-consent/

That last is written for adults!

(PART 1)

One of the comments on the piece in the Daily Mail:

"Sexual Offences Act 2003 section 8 - Causing or inciting a child under 13 to engage in sexual activity."

Surely that is exactly what this is?

They avoid using the word but in practice what they are doing is asking a classroom full of children, from age of 6yrs onwards, to masturbate in front of them and in front of each other.

Then they repeat this throughout the programme in each school year.

What the hell are they doing to these children?? No way is this for the benefit of the children - that's why there are laws against it.

Sarah Phillimore @spero - is this legal??

Oh! Just checked Twitter and notice that you have already been alerted to this:

twitter.com/Womens_Voices_/status/1176215764958896128

Apparently, the programme has been put together by a "sexologist" Jonny Hunt who is linked to The Kinsey Institute, pornographers, Miles Jackman, the obscenity lawyer who got extreme porn laws relaxed in the UK and that Dr. Christian (advocate of porn in the classroom and cosy chats with Dr Haddock about under-age sex).

Jonny Hunt's tasteful Twitter handle is "littlerubberhat" - his tweets are protected. I can't imagine why!

Here is his Twitter::
twitter.com/littlerubberhat

Website "Going Off the Rails" (apt!)
www.goingofftherails.co.uk

YouTube Channel (a grand total of 6 subscribers!)
www.youtube.com/channel/UC5iYUDJZAko-yB2zetiRNvw

Here is the "All About Me" programme - which has been running for 5 years in Warwickshire and in over 100 schools! He says it has just been updated to comply with new DfE Guidance.

www.goingofftherails.co.uk/allaboutme/

To put things in basic terms we're absolutely fucked and your children are being openly groomed by the government.

Kink not link.

there's something about boundaries in all this that makes me very uneasy.

That's because there are red flags left right and centre and actual peadophiles are making sex education policy for schools.
Exposing kids to link is now being pushed at pride / story time and in schools.

Everyone should be feeling uneasy anyone who doesn't shouldn't be around children.

i bet this will be very useful evidence for lowering age for sex content.

"judge ! kids are not innocent. in age 6 they do masturbation.
they are kink. they know what they do. (because school teach them:()"

looks like slippery slope.

Seriously, who wants to talk about masturbation with their teacher?

I've also had a reply from my MP, as have others who I encouraged to email him also.

There is no denying that women are doing their best to raise this as an issue.

I encourage others to email the EHRC directly too

[email protected]
[email protected]

I just briefly reworded the email I sent to my MP, and I got a very quick reply.

the assumption here is ordinary primary teachers will teach this?

They will feel uncomfortable about it, but most will follow like good sheep. The others will be hounded out of the profession.

www.dailymail.co.uk/news/article-7490415/amp/Children-young-SIX-given-compulsory-self-touching-lessons.html?__twitter_impression=true and this.

Got a response from my Tory MP. He knew nothing about them, was shocked and wanted to contact the relevant minister.