Writing to your MP

[Speakoutwoman]

I wrote to my Tory MP about the toxic EHRC guidelines for trans pupils and for the first time got a horrified letter back talking about the safeguarding implications with a promise to follow this up with the Education minister.

This is the first time they have fallen off the fence about this so if you have't found the time to write, this is the issue where the silent MPs may speak out. Insisting on the boys and girls sharing changing rooms and showers is evidently a step too far. And the safeguarding implications of 11 year old girls having to change in front of 15 year old boys in after school clubs was not ignored.

(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 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 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 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 13)

Key points

Consent is irrelevant.

There is a defence of reasonable belief that the child is 16 or over. This does not apply where the child is under 13.
No defence for lawfully married couples (foreign nationals) where one party is under 16.
There is a defence for aiding and abetting or counselling the commission of an offence under section 9 only where the conditions of section 73 apply (see above).

Under section 11, there is no requirement that (B) is actually aware of the activity, although there is a requirement that (B) is present or can observe. Observation can be via a web-cam. Observation includes an image (section 79).

Penalties

The offences in sections 9 and 10 are indictable only with a maximum sentence of 14 years where penetration occurs within subsection (2) of those sections. In all other cases the offence is either way with a maximum sentence of 14 years on indictment.

Sections 9 and 10 create 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.

The offences in sections 11 and 12 are either way and carry a maximum sentence of 10 years on indictment.

(PART 13)

(PART 14)

The factors in assessing the seriousness of the offences in sections 9-12 will be:

the nature of the sexual activity;
the age and degree of vulnerability of the victim;
the age gap between the child and the offender;
any breach of trust in the relationship of the parties; and
any aggravating features, such as, covert use of drugs, use of force, exploitation etc.

In relation to this set of offences, R v Corran: R v Cutler: R v Heard: R v Williams [2005] EWCA Crim 192 provides that:

The factors applicable to determining sentence under section 5 (see above) are also applicable to offences under ss.9 and 10 save that where the defendant had a reasonable belief that a victim was 16, that belief operated as a defence and not just mitigation.
Sentences under ss.11 and 12 would usually be less than those under ss.5-10. However, the age and character of the child and the defendant were relevant as were the nature of the act, the number of incidents, the impact on the child, remorse and future risk.

Charging practice

As well as giving rise to offences under sections 9 and 10 the same set of circumstances may also support a prosecution for other offences requiring proof of lack of consent. Where this situation arises and it is clear that there is an absence of consent, and an absence of reasonable belief in consent, it would be appropriate to charge a non-consensual offence.

If, however, there are difficulties in proving the non-consensual offences, then an offence under section 9 may be appropriate (where the elements can be proved).

Offences under sections 25 and 26 (familial child sex offences) may also come within sections 9 and 10. Where there is clear evidence of the family relationship, prosecutors should charge the familial child sex offence.

(PART 14)

(PART 15)

Sections 9 and 10 apply where a child is under 13, which means that the activity may also be an offence under sections 5-8 (rape of a child under 13, assault of a child under 13 by penetration, sexual assault of a child under 13, and causing of inciting a child under 13 to engage in sexual activity). The reason for this is to cover the situation where the prosecution have difficulty in proving the age of the victim, so that there is no need to amend the charge or prefer an alternative charge.

Therefore, if it can be proved that the child is under 13 then prosecutors should charge an offence, if appropriate, under sections 5-8. If there is difficulty in proving the victim is under 13, then a child sex offence should be charged. This approach is consistent with the intention of Parliament.

Section 13: Child sex offences committed by children or young persons

It is an offence if a person under 18 commits an offence if she/he does anything which would be an offence under sections 9 -12.

The penalty is reduced to:

Summary conviction - imprisonment not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
On indictment - imprisonment for a term not exceeding 5 years.
This section comes within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (Offenders under 18 convicted of certain serious offences: power to detain for specified period). Whether section 91 applies will depend on the nature of the sexual activity and if there are any aggravating features present, such as penetration in the presence of other children.

Code for Crown Prosecutors - Adult/child defendants

Guidance set out above in relation to sections 5-8 also applies to the child sex offences. The relevant factors that prosecutors should consider are repeated below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. However, in deciding whether it is in the public interest to prosecute a person, prosecutors may exercise more discretion in relation to child sex offences (where the victim is a child aged 13-15) than for offences against children under 13.

(PART 15)

(PART 16)

Prosecutors should have regard to the following factors:

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 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 or manipulation in the relationship;

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

What is in the best interests and welfare of the complainant; and

What is in the best interests and welfare of the defendant.

In summary, where a defendant, for example, is exploitative, or coercive, or much older than the victim, the balance may be in favour of prosecution, whereas if the sexual activity is truly of the victim's own free will the balance may not be in the public interest to prosecute.

(PART 16)

(PART 17)

In addition, it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption. In such cases, protection will normally be best achieved by providing education for the children and young people and providing them and their families with access to advisory and counselling services. This is the intention of Parliament.

Other related offences against children (under 16)

Arranging and facilitating a child sex offence (section 14)

The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.

Key points

A person must intentionally arrange or facilitate for himself or another something that he intends or believes would happen that would result in a commission of a child sex offence in any part of the world (sections 9-13).

There is a defence if the person arranges or facilitates something that although he believes might happen, he does not intend it to happen, and he acts for the protection of the child i.e. from sexually transmitted infection; physical safety; from becoming pregnant; or promoting the child's well-being by giving advice. For example, where a person provides a condom to a girl under 16 in order to protect her from sexually transmitted infections/pregnancy in circumstances where she says she is already having sexual intercourse.

However, the defence does not apply if the person acts for the purpose of causing or encouraging the activity constituting the child sex offence or the child's participation in it. For example, a person who gives a condom to a child under 16 to protect her from pregnancy whilst arranging for her to have sex with a friend. Similarly, the defence does not apply if the person acts for the purpose of obtaining sexual gratification.

(PART 17)

(PART 18)

Charging Considerations

If considering a charge under s14, in which no real child was involved, such as cases involving undercover officers or ‘vigilante groups’, prosecutors should charge the substantive offence and not an attempt.

Section 14(1) creates an offence which is a substantive inchoate offence. It is similar to, but broader than, an attempt. See R [2008] EWCA Crim 619. ‘Arranging’ and ‘facilitating’ are different considerations to ‘more than merely preparatory’. As such, there will be circumstances which would constitute ‘arranging‘ or ‘facilitating’, but fall short of an ‘attempt’.

The focus of the offence is on the child sexual offence which the person intended to arrange or facilitate. The fact that an offence may have been impossible has no bearing on the intention possessed at the time it was arranged of facilitated.

The offence is committed if the person intentionally arranges or facilitates the commission of an offence under sections 9-13 SOA 2003. It is only necessary to prove the arrangement or facilitation together with the requisite mens rea to commit a section 9-13 SOA 2003 offence in the future. The proof of an arrangement or facilitation is not dependent on the possibility of carrying it out.

Prosecutors should also refer to legal guidance on internet vigilantes when considering potential charges contrary to this section.

Penalty

The offence is either way and carries a maximum sentence of 14 years on indictment

(PART 18)

END

(I had no idea how much f that stuff there was! Apologies! Hope it is helpful anyway. There was a following section "Meeting a child following sexual grooming (section 15, as amended)" but I was losing the will to live!)

Copied and pasted from:

www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-2-sexual-offences-act-2003-principal-offences-and

MoleSmokes
In 'Keeping Children Safe', the issue of consent is discussed in the section on Child Sexual Exploitation? (page 17). Is the concern that it's not flagged up from the outset that children cannot consent to any form of sexual activity?

Speakoutwoman - the reference in that section is fleeting, understated, buried in the rest of the text and misstates the law:

Quote:

Child sexual exploitation

Child sexual exploitation is a form of child sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears consensual. Child sexual exploitation does not always involve physical contact, it can also occur through the use of technology. Like all forms of child sex abuse, child sexual exploitation:

• can affect any child or young person (male or female) under the age of 18 years, including 16 and 17 year olds who can legally consent to have sex;
• can still be abuse even if the sexual activity appears consensual;
• can include both contact (penetrative and non-penetrative acts) and non-contact sexual activity;
• can take place in person or via technology, or a combination of both;
• can involve force and/or enticement-based methods of compliance and may, or may not, be accompanied by violence or threats of violence;
• may occur without the child or young person’s immediate knowledge (e.g.through others copying videos or images they have created and posted on social media);
• can be perpetrated by individuals or groups, males or females, and children or adults. The abuse can be a one-off occurrence or a series of incidents over time, and range from opportunistic to complex organised abuse; and
• is typified by some form of power imbalance in favour of those perpetrating the abuse. Whilst age may be the most obvious, this power imbalance can also be due to a range of other factors including gender, sexual identity, cognitive ability, physical strength, status, and access to economic or other resources.

(end quote)

In the whole document, about "Keeping Children Safe" the only references to Consent to sex are in that section and state:

"The victim may have been sexually exploited even if the sexual activity appears consensual."

and

"can still be abuse even if the sexual activity appears consensual;"

"may" and "can" are equivocal, vague, apply to the sexual exploitation of adults rather than children and are open to interpretation by the staff who are supposed to be trained to use this document to help protect children.

This is statutory guidance - but it misrepresents the statutory protection that the law gives to children.

It is as if that whole section of the Sexual Offences Act relating to children does not exist.

It seems an extraordinary oversight to give the impression that children "can" or "may" be responsible for "consenting" to activities when legally they cannot.

Quotes:

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."

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.

(end quotes)

That "maximum protection" is completely undermined by the Statutory Guidance.

Thanks very much for this thread, I have been aware of some alarm on Twitter but haven't got my head around it yet - bookmarking and will read tonight.

Cheers Spero ! If this is the problem that it seems to be then I will start a new thread so that the issue does not get buried here or, quite possibly, clog up a this more general thread with a very specific discussion. I had better check in case someone has already made one about it :-)

Thank you MoleSmokes I can see that you've started a thread about this which is very helpful. It really does need it's own thread as it's so serious.

I have started a new thread for:

1. Warwickshire "teaching school kids how to masturbate" Jonny Hunt "All About Me" schools programme as covered in the Daily Mail

PLUS

2. DfE "Keeping children safe in education - Statutory guidance for schools and colleges

as they are related and did not want them to get lost in this thread or, alternatively, they might swamp it:

www.mumsnet.com/Talk/womens_rights/3700556-Safeguarding-in-UK-Schools-new-Statutory-Guidance-existing-classroom-programme-teaching-6yr-olds-to-masturbate

They might well come back here as things to write to MPs about.

*Speakoutwoman" cross-posted

Tips for writing to MPs:
Give your name & address- they will only respond to constituents.
Ask specific questions- anything too general will get a general (often C&P) response
Ask them to refer to minister esp if they’re Tory
Don’t sound too ‘daily mail’. Make it personal to you.

If you want to see them in a surgery be prepared to explain why you want to see them to a caseworker in advance- that’s so they can come prepared. But - be prepared for any meetings to be cancelled at short notice- MPs diaries are chaos at the moment.

But KEEP WRITING.

I work for an MP. We have around 70000 constituents. About 5 have contacted about gender...

MoleSmokes any idea where I would check if equivalent guidance is used in Scotland?

CharlieParley - I don't know. Your best bet is to ask someone like . . . @Mbwashenzi ? @ScottishDoll ? @ScrimshawTheSecond ?

Twitter If you are on Twitter you will know which MSPs most likely to sit up and take notice

also @/forwomenscot , @/WGScotland , @/ScottishWomen

Thanks for the suggestions, will give them a try.

Er, I'm flattered, MoleSmokes, but please don't mistake me for someone who knows much about anything!

Charlie, at a wild guess, the RSHP (which just had a consultation) may be relevant. You can join the network and get updates, and also, as far as I know, check the guidance on Relationships/Sexual Health/Parentood given to all ages & stages in Scottish schools.

But hopefully someone with more of an overview will be able to tell you definitely where to check.

Thank you Mole for your energy on this and GeneticTest for the practical advice. It is a real blast from the past to see Blairite Lord Falconer setting out that common sense kind of child protection law and made me remember how child protection (at least in the context of system failures and trying to do better) was quite a big theme in the mainstream media and party politics. Mid90s fo early 00s perhaps.
And what’s happened since that the narrative has apparently changed so much? I can only think, much much easier access to porn. So where does that leave children growing up in a pornified society? At increased risk and with reduced protections. I don’t think that risk can be overstated.

Hi Scrimshaw I scrolled through some of the threads about the Scottish GRA, spotted your name as someone who seemed to know what they were talking about - you had me fooled

GeneticTest Yes, thank you very much for the advice! Also for the insight about numbers contacting an MP. Impossible to interpret as it could be for so many reasons, eg.
one or more of the following

a) lack of awareness that anything has changed and might be about to change further
b) aware but don't care/different priorities
c) aware but and concerned but have not taken any action at all
d) aware and concerned but any action taken did not include contacting MP
e) aware and support changes and further proposed changes

There are standard metrics for estimating the proportion of a population that is represented by those who actually complain about anything - if I could actually remember what they were!

Chattylion - my dander is up about this!

There are so many activities that different children around that age find comforting or soothing, eg. listening to music, "personal grooming" like brushing their hair, each others hair, a doll's or a pet's hair; finger painting; reading or having the same familiar story read to them over and over again; taking things apart and putting them back together again . . . and on . . . and on . . . and on.

I am sure that every parent can think of something that they expected or that they were surprised by in their child. A very small number, as acknowledged by everyone interviewed in the Daily Mail story, would know that their children masturbated occasionally.

There is absolutely no logical reason for picking that one activity, which seems to be presented as a solitary activity (small mercies!) as appropriate for teaching as part of "Relationships" in RSE. Even if to do so was legal - which I have yet to be convinced that it is.

The only possible reasons are:

• to sexualise children at a very early age as part of sexual grooming

- and/or for the sexual gratification of the adults involved

• and/or as part of some private experiment being conducted on unwitting children, a la Kinsey requiring parents (usually fathers, I think) to masturbate their infant children.

Mole that literally made my blood run cold. Kinsey wanted adults to abuse kids? What?