Sexual Offences

Law For The Accused

National Crime Agency - defence

Many people (men in particular) are accused of sexual offences. These types of offences require particular care as the allegation are based upon quite limited evidence and there are frequently reported cases of complainants admitting that allegation made were false. Some allegations are motivated by malice others are made for financial gain.

Defence solicitor have the job putting forward their clients´ defence and not to judge the case.

Often it is a case of the word of one person against the word of another.

Here, we have set out the text of the law without comment.

People facing allegations under this law are always embarrassed and it is difficult to talk about these subjects but the starting point is to engage a solicitor who will not judge you. The defence lawyer´s job is to represent their client fearlessly, no matter what the case is about.


The most common offences are:-

Sexual Offences Act 2003, s.1

Rape

(1) 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.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

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Sexual Offences Act 2003, s.2

Assault by penetration

(1) A person (A) commits an offence if -

(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b) the penetration is sexual,

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

(d) A does not reasonably believe that B consents.

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Sexual Offences Act 2003, s.3

Sexual assault

(1) A person (A) commits an offence if -

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

(2), (3) [Identical to s.1(2), (3), ante, 20-19.]

(4) A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

(2), (3) [Identical to s.1(2), (3), ante, 20-19.]

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life

Intention

In R. v. Heard (Lee)[2007] 1 Cr.App.R. 37, CA, it was said that voluntary intoxication can only be relied on as negativing mens rea in the case of crimes an ingredient of which is a specific or purposive intent; and it was held that sexual assault, contrary to section 3 of the 2003 Act, is not such a crime, notwithstanding that one element of the offence which has to be proved is an "intentional" touching of the complainant by the defendant (see s.3(1)(a)); whilst this means that the touching must be deliberate, and not accidental or even reckless, in those exceptional cases where the defendant's mind did not go with his physical act on account of his self-induced intoxication, this will not avail him. Whilst the case was concerned with section 3, the reasoning must apply equally to the offence under section 2 (and, indeed, section 1), however unlikely it may be that there would ever be a live issue as to the intentional nature of an act of penetration.

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Sexual Offences Act 2003, s.4

Causing a person to engage in sexual activity without consent

(1) A person (A) commits an offence if -

(a) he intentionally causes another person (B) to engage in an activity,

(b) the activity is sexual,

(c) B does not consent to engaging in the activity, and

(d) A does not reasonably believe that B consents.

(2), (3) [Identical to s.1(2), (3), ante, 20-19.]

(4) A person guilty of an offence under this section, if the activity caused involved -

(a) penetration of B's anus or vagina,

(b) penetration of B's mouth with a person's penis,

(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or

(d) penetration of a person's mouth with B's penis,

is liable, on conviction on indictment, to imprisonment for life.

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Sexual Offences Act 2003, s.5

Rape of a child under 13

(1) A person commits an offence if -

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

(b) the other person is under 13.

(2) Identical to s.2(4)

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Sexual Offences Act 2003, s.6

Assault of a child under 13 by penetration

(1) A person commits an offence if -

(a) he intentionally penetrates the vagina or anus of another person with a part of his body or anything else,

(b) the penetration is sexual, and

(c) the other person is under 13.

(2) [Identical to s.2(4) ]

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Sexual Offences Act 2003, s.7

Sexual assault of a child under 13

(1) A person commits an offence if -

(a) he intentionally touches another person,

(b) the touching is sexual, and

(c) the other person is under 13.

(2) A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.

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Sexual Offences Act 2003, s.8

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

(1) A person commits an offence if -

(a) he intentionally causes or incites another person (B) to engage in an activity,

(b) the activity is sexual, and

(c) B is under 13.

(2) A person guilty of an offence under this section, if the activity caused or incited involved -

(a) penetration of B's anus or vagina,

(b) penetration of B's mouth with a person's penis,

(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or

(d) penetration of a person's mouth with B's penis,

is liable, on conviction on indictment, to imprisonment for life.

(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.

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Sexual Offences Act 2003, s.9

9. Sexual activity with a child

(1) A person aged 18 or over (A) commits an offence if -

(a) he intentionally touches another person (B),

(b) the touching is sexual, and

(c) either -

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(2) A person guilty of an offence under this section, if the touching involved -

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body, or

(d) penetration of A's mouth with B's penis,

is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(3) [Identical to s.8(3) (including the prospective amendment), ante, 20-52.]

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Sexual Offences Act 2003, s.10

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 activity,

(b) the activity is sexual, and

(c) either -

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(2) A person guilty of an offence under this section, if the activity caused or incited involved -

(a) penetration of B's anus or vagina,

(b) penetration of B's mouth with a person's penis,

(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or

(d) penetration of a person's mouth with B's penis,

is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(3) [Identical to s.8(3) (including the prospective amendment),

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Sexual Offences Act 2003, s.11

Engaging in 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,

(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 be aware, that he is engaging in it, and

(d) either -

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(2) A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

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Sexual Offences Act 2003, s.12

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 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, and

(c) either -

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(2) [Identical to s.11(2) (including the prospective amendment),

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Sexual Offences Act 2003, s.13

Child sex offences committed by children or young persons

(1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18.

(2) A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 [12] 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.

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Sexual Offences Act 2003, s.14

Arranging or facilitating commission of a child sex offence

(1) A person commits an offence if -

(a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and

(b) doing it will involve the commission of an offence under any of sections 9 to 13.

(2) A person does not commit an offence under this section if -

(a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do, and

(b) any offence within subsection (1)(b) would be an offence against a child for whose protection he acts.

(3) For the purposes of subsection (2), a person acts for the protection of a child if he acts for the purpose of -

(a) protecting the child from sexually transmitted infection,

(b) protecting the physical safety of the child,

(c) preventing the child from becoming pregnant, or

(d) promoting the child's emotional well-being by the giving of advice,

and not for the purpose of obtaining sexual gratification or for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it.

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Sexual Offences Act 2003, s.15

Meeting a child following sexual grooming etc.

(1) A person aged 18 or over (A) commits an offence if -

(a) A has met or communicated with another person (B) on at least two occasions and subsequently -

(i) A intentionally meets B,

(ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or

(iii) B travels with the intention of meeting A in any part of the world,

(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,

(c) B is under 16, and

(d) A does not reasonably believe that B is 16 or over.

(2) In subsection (1) -

(a) the reference to A having met or communicated with B is a reference to A having met B in any part of the world or having communicated with B by any means from, to or in any part of the world;

(b) "relevant offence" means -

(i) an offence under this Part, ... or

(iii) anything done outside England and Wales which is not an offence within sub-paragraph (i) but would be an offence within sub-paragraph (i) if done in England and Wales.

(3) [Identical to s.11(2) (including the prospective amendment),

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Sexual Offences Act 2003, s.16

Abuse of position of trust: sexual activity with a child

(1) A person aged 18 or over (A) commits an offence if -

(a) he intentionally touches another person (B),

(b) the touching 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 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.

(2) This subsection applies where A -

(a) is in a position of trust in relation to B by virtue of circumstances within section 21(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 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 21(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 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 [12] 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.

[In subs. (5)(a), "12" is substituted for "6", as from a day to be appointed, by the CJA 2003, s.282(2) and (3). The increase has no application to offences committed before the substitution takes effect: s.282(4).]

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Sexual Offences Act 2003, s.17

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 activity,

(b) the activity is sexual,

(c) A is in a position of trust in relation to B,

(d), (e) [identical to s.16(1)(d), (e), ante, 20-96].

(2)-(5) [Identical to s.16(2)-(5) (including the prospective amendment of subs. (5)), ante, 20-96].

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Sexual Offences Act 2003, s.18

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,

(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 be aware, that he is engaging in it,

(d) A is in a position of trust in relation to B,

(e), (f) [identical to s.16(1)(d), (e), ante, 20-96].

(2)-(5) [Identical to s.16(2)-(5) (including the prospective amendment of subs. (5)), ante, 20-96].

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Sexual Offences Act 2003, s.19

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 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), (e) [identical to s.16(1)(d), (e), ante, 20-96].

(2)-(5) [Identical to s.16(2)-(5) (including the prospective amendment of subs. (5)), ante, 20-96].

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Sexual Offences Act 2003, s.20

Abuse of position of trust: acts done in Scotland

Anything which, if done in England and Wales, would constitute an offence under any of sections 16 to 19 also constitutes that offence if done in Scotland or Northern Ireland.

[This section is printed as amended by S.I. 2008 No. 1779 (ante, 20-91), arts 3 and 5.]

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Sexual Offences Act 2003, s.21

Positions of trust

(1) For the purposes of sections 16 to 19, a person (A) is in a position of trust in relation to another person (B) if -

(a) any of the following subsections applies, or

(b) any condition specified in an order made by the Secretary of State is 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 home or other place in which -

(a) accommodation and maintenance are provided by an authority under [in accordance with] section23(2) [22C(6)] of the Children Act 1989, or

(b) accommodation is provided by a voluntary organisation under section 59(1) of that Act,

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 -

(a) a hospital,

(b) an independent clinic,

(c) a care home,

(d) a community home, voluntary home or children's home, or

(e) a home provided under section 82(5) of the Children Act 1989,

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.

(7) This subsection applies if A is engaged in the provision of services under, or pursuant to anything done under -

(a) sections 8 to 10 of the Employment and Training Act 1973, or

(b) section 68, 70(1)(b) or 74 of the Education and Skills Act 2008,

and, in that capacity, looks after B on an individual basis.

(8) This subsection applies if A regularly has unsupervised contact with B (whether face to face or by any other means) -

(a) in the exercise of functions of a local authority under section 20 or 21 of the Children Act 1989, ... .

(9) This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 on matters relating to the welfare of B, regularly has unsupervised contact with B (whether face to face or by any other means).

(10) 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,

and, in that capacity, looks after B on an individual basis.

(11) 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 after B on an individual basis.

(12) This subsection applies if A -

(a) is an officer of the Service or Welsh family proceedings officer (within the meaning given by section 35 of the Children Act 2004) appointed for B under section 41(1) of the Children Act 1989,

(b) is appointed a children's guardian of B under rule 6 or rule 18 of the 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),

and, in that capacity, regularly has unsupervised contact with B (whether face to face or by any other means).

(13) 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, and

(b) A looks after B on an individual basis in pursuance of the requirements.

[This section is printed as amended by the Children Act 2004, s.40, and Sched. 3, para. 18; S.I. 2008 No. 1779 (ante, 20-91), arts 3 and 6; and the Education and Skills Act 2008, s.169(1), and Sched. 1, para. 81; and as amended, as from a day to be appointed by the CYPA 2008, s.8(2), and Sched. 1, para. 15 (omission of "under" and "23(2)", and insertion of text in square brackets, in subs. (3)(a)).]

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Sexual Offences Act 2003, s.22

Positions of trust: interpretation

(1) The following provisions apply for the purposes of section 21.

(2) Subject to subsection (3), a person looks after persons under 18 if he is regularly 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 with B (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 another educational institution at which he is so registered or otherwise enrolled.

(5) In section 21 -

"authority" - (a) in relation to England and Wales, means a local authority; ...

"care home" meansan establishment which is a care home for the purposes of the Care Standards Act 2000;

"care order"has - (a) in relation to England and Wales, the same meaning as in the Children Act 1989, ...

"children's home"has - (a) in relation to England and Wales, the meaning given by section 1 of the Care Standards Act 2000, ...

"community home"has the meaning given by section 53 of the Children Act 1989;

"education supervision order"has - (a) in relation to England and Wales, the meaning given by section 36 of the Children Act 1989, ...

"hospital" - (a) in relation to England and Wales, means a hospital within the meaning given by section 275(1) of the National Health Service Act 2006 or section 206(1) of the National Health Service Act 2006, or any other establishment which is a hospital within the meaning given by section 2(3) of the Care Standards Act 2000; ...

"independent clinic"has - (a) in relation to England and Wales, the meaning given by section 2 of the Care Standards Act 2000; ...

"supervision order"has - (a) in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989, ...

"voluntary home"has - (a) in relation to England and Wales, the meaning given by section 60(3) of the Children Act 1989, ... .

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Sexual Offences Act 2003, s.25

Sexual activity with a child family member

(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 27,

(d) A knows or could reasonably be expected to know that his relation to B 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.

(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 relation of the defendant to the other person was of a description falling within section 27, 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.

(4) A person guilty of an offence under this section, if aged 18 or over at the time of the offence, is liable -

(a) where subsection (6) applies, on conviction on indictment to imprisonment for a term not exceeding 14 years;

(b) in any other case -

(i) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(5) Unless subsection (4) applies, a person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 [12] 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.

(6) This subsection applies where the touching involved -

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body, or

(d) penetration of A's mouth with B's penis.

[In subss. (4)(a) and (5)(a), "12" is substituted for "6", as from a day to be appointed, by the CJA 2003, s.282(2) and (3). The increase has no application to offences committed before the substitution takes effect: s.282(4).]

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Sexual Offences Act 2003, s.26

Inciting a child family member to engage in sexual activity

(1) A person (A) commits an offence if -

(a) he intentionally incites another person (B) to touch, or allow himself to be touched by, A,

(b)-(e) [identical to s.25(1)(b)-(e), ante, 20-110].

(2), (3) [Identical to s.25(2), (3) ante, 20-110.]

(4) A person guilty of an offence under this section, if he was aged 18 or over at the time of the offence, is liable -

(a) where subsection (6) applies, on conviction on indictment to imprisonment for a term not exceeding 14 years;

(b) in any other case -

(i) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(5), (6) [Identical to s.25(5) (including the prospective amendment), (6), [In subss. (4)(b) and (5)(a), "12" is substituted for "6", as from a day to be appointed, by the CJA 2003, s.282(2) and (3). The increase has no application to offences committed before the substitution takes effect: s.282(4).]

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Sexual Offences Act 2003, s.27

Family relationships

(1) The relation of one person (A) to another (B) is within this section if -

(a) it is within any of subsections (2) to (4), or

(b) it would be within one of those subsections but for section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 (status conferred by adoption).

(2) The relation of A to B is within this subsection if -

(a) one of them is the other's parent, grandparent, brother, sister, half-brother, half-sister, aunt or uncle, or

(b) A is or has been B's foster parent.

(3) The relation of A to B is within this subsection if A and B live or have lived in the same household, or A is or has been regularly involved in caring for, training, supervising or being in sole charge of B, and -

(a) one of them is or has been the other's step-parent,

(b) A and B are cousins,

(c) one of them is or has been the other's stepbrother or stepsister, or

(d) the parent or present or former foster parent of one of them is or has been the other's foster parent.

(4) The relation of A to B is within this subsection if -

(a) A and B live in the same household, and

(b) A is regularly involved in caring for, training, supervising or being in sole charge of B.

(5) For the purposes of this section -

(a) "aunt" means the sister or half-sister of a person's parent, and "uncle" has a corresponding meaning;

(b) "cousin" means the child of an aunt or uncle;

(c) a person is a child's foster parent if -

(i) he is a person with whom the child has been placed under section 23(2)(a)or 59(1)(a)of the Children Act1989 (fostering for local authority or voluntary organisation), or

[(i) he is a person with whom the child has been placed under section 22C of the Children Act 1989 in a placement falling within subsection (6)(a) or (b) of that section (placement with local authority foster parent),

(ia) he is a person with whom the child has been placed under section 59(1)(a) of that Act (placement by voluntary organisation), or]

(ii) he fosters the child privately, within the meaning given by section 66(1)(b) of that Act;

(d) a person is another's partner (whether they are of different sexes or the same sex) if they live together as partners in an enduring family relationship;

(e) "step-parent" includes a parent's partner and "stepbrother" and "stepsister" include the child of a parent's partner.

[This section is printed as amended by the CJIA 2008, s.73, and Sched. 15, paras 2 and 3; and as amended, as from a day to be appointed, by the CYPA 2008, s.8(2), and Sched. 1, para. 16 (substitution of subs. (5)(c)(i) and (ia) (in square brackets) for subs. (5)(c)(i) (in italics)).]

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Sexual Offences Act 2003, s.28

28. Sections 25 and 26: exception for spouses and civil partners

(1) Conduct by a person (A) which would otherwise be an offence under section 25 or 26 against another person (B) is not an offence under that section if at the time -

(a) B is 16 or over, and

(b) A and B are lawfully married or civil partners of each other.

(2) In proceedings for such an offence it is for the defendant to prove that A and B were at the time lawfully married or civil partners of each other.

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Sexual Offences Act 2003, s.75

Evidential presumptions about consent

(1) If in proceedings for an offence to which this section applies it is proved -

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2) existed, and

(c) that the defendant knew that those circumstances existed,

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.

(2) The circumstances are that -

(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;

(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;

(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;

(e) because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

(f) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

(3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

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Sexual Offences Act 2003, s.76

Conclusive presumptions about consent

(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed -

(a) that the complainant did not consent to the relevant act, and

(b) that the defendant did not believe that the complainant consented to the relevant act.

(2) The circumstances are that -

(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

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