"An 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."
This was introduced to the House of Lords in January 2003, following a White Paper 'Protecting the Public' published in 2002 which in turn followed a consultation 'Setting the Boundaries: Reforming the law on sex offences'.
That consultation specifically excluded prostitution offences, however this did not stop some changes in the laws in this area being introduced after the Parliamentary process had started, including one at a very late stage.
The bill received Royal Assent on 20th November 2003, becoming the Sexual Offences Act 2003. Its provisions were introduced on 1st May 2004.
The first part of the Act applies to England and Wales. It also applies to Northern Ireland except that their age of consent will remain 17, ie the 'Child Sex Offences' sections will cover 17 year olds there. It does not apply in Scotland.
The main sections directly affecting sex workers are
s47 - Paying for sexual services of a child - it will be illegal to pay for otherwise legal sexual activity with someone aged 16 or 17
s51 - New definitions of 'prostitute' and 'being involved in pornography' - offer or provide sexual services to another person in return for any sort of financial arrangement once and you're a prostitute forever
s52 - Causing or inciting prostitution for gain - we expect that no escort service etc will advertise to take on staff who have not previously been sex workers
s53 - Controlling prostitution for gain - the owners and management of escort agencies and brothels etc will be at risk of this section. No gain element will be needed if they are U-18
s55 - Penalties for keeping a brothel used for prostitution - in addition, the penalties for keeping, managing, or assisting in the management of a brothel involving prostitution are greatly increased
s56 - Extension of gender-specific prostitution offences - men will now be chargeable with soliciting for the purposes of prostitution and women with kerb-crawling, for example
.. but note that it will remain legal for a 16/17 year old to sell sex (only the client commits an offence) or to be a sex worker for an escort agency or in a brothel.
A quick guide to the Act with clause numbers in [brackets]
[78-79] Definitions
Touching includes touching with anything and through anything.
Sexual – Penetration, touching or any other activity is sexual if a reasonable person would consider that it is or because it is done with a sexual purpose, eg the activities of a foot fetishist may not be considered sexual by a 'reasonable person', but if done for a sexual purpose, it's sexual. Conversely, if you protest that what you did wasn't sexual, because you didn't do it for that purpose, the court can say a reasonable person would say, 'Oh yes it was'.
References to a part of the body include references to a part surgically constructed and in particular, through gender reassignment surgery.
References to an image of a person include references to an image of an imaginary person. This is in there to cover eg computer generated images, but has been attacked as a 'thought crime' law: if no-one else is harmed or indeed actually involved in creating an image, why should possessing it be a crime?
Rape
[1] Rape – will now include non-consensual 'sticking your penis in someone's mouth'. The recent changes to include '… in someone's anus' and for that someone to be male stay. Max penalty: life. Also a separate [5] 'rape of a child under 13' offence, no consent possible.
[74] Consent – you're guilty if they did not consent, and you do not reasonably believe that they did. That second bit is there because of one case some years ago ('DPP v Morgan') where the defendant was acquitted because he convinced the court that, although the woman did not consent, at the time he thought – however unreasonably – that she did. No mens rea (Latin for 'guilty mind'), no crime. Not any more.
[75] If violence is used or threatened against anyone, or if the complainant was unlawfully detained or asleep or unconscious, unable to communicate consent because of a physical disability, or drugged (including by alcohol) without consent... then the burden of proof shifts and it's up to the defendant to demonstrate that there was a reasonable belief in consent.
[76] There are also two conclusive presumptions: if the defendant intentionally deceives the complainant as to the nature or purpose of the relevant act (eg to say it is medically necessary or will improve their singing voice) or impersonates someone known personally to the complainant in order to get them to consent, they're guilty.
Assault
Much of what was indecent assault is now...
[2] Assault by penetration – non-consensual 'sticking something other than a penis inside someone's vagina or anus' (only). Max penalty: life. Again, a separate [6] '..under 13' offence, with no consent possible.
[3] Sexual assault – non-consensual 'sexual touching'. Max penalty: six months or a fine in a magistrate's court, ten years in a crown court. The separate [7] '..under 13' offence has a 14 year max penalty.
Causing sexual activity without consent
[4] Causing a person to engage in sexual activity without consent – what it says. Max penalty: life if penetration (including penis-mouth penetration) involved, else six months or a fine in a magistrate's court, ten years in a crown court. The separate [8] '… under 13' offence has a 14 year max penalty.
Child sex offences
[9] Sexual activity with a child and [10] Causing or inciting a child to engage in sexual activity – Someone 18+ who touches sexually (or incites to be 'sexual') someone under 13 or someone they do not reasonably believe is over 16, or causes or incites someone else to do so. Max penalty: 14 years, but if penetration of vagina, anus or mouth is not involved, it can also be tried in a magistrate's court where the maximum is six months or a fine.
[11] Engaging in sexual activity in the presence of a child – Someone 18+ who intentionally engages in a sexual activity, for the purpose of obtaining sexual gratification, knowing someone under 13 or someone they do not reasonably believe is over 16 can see it. Max penalty: six months or a fine in a magistrate's court, 10 years in a crown court.
[12] Causing a child to watch a sexual act – As above, but getting them to see other people being sexual, including in an image.
[13] Child sex offences committed by children or young persons – The child offences in sections 9-12 above, committed by someone under 18. The max penalty is reduced to 5 years.
This confirms that, for example, two fifteen year olds having consensual sex are both committing an offence. During the debates in Parliament, a case of champagne was on offer for anyone who could phrase a law that would retain a fixed age of consent and catch abusive behaviour involving children - which everyone agreed should be an offence - while allowing genuinely consensual behaviour - which many think should not be. No-one won it.
What stops the courts being filled with fifteen year olds who have been caught snogging is the 'public interest' test of the Crown Prosecution Service.
[14] Arranging or facilitating commission of a child sex offence – assisting in child offences covered in sections 9-12. Max penalty: six months or a fine in a magistrate's court, 14 years in a crown court.
It is not an offence if it was done to protect the child from sexually transmitted infection or pregnancy; protect the physical safety of the child; or promote the child's emotional well-being by the giving of advice... but only if it's not for the purpose of obtaining sexual gratification or to causing or encouraging the activity. So giving condoms to U-16s should be ok, provided you don't get off on it or encourage them to have intercourse.
Most professionals work to what are known as the Fraser Guidelines, following the ruling by Lord Fraser in the case of Gillick v West Norfolk AHA etc, where Mrs Gillick failed to prevent any possible future provision of contraceptive advice to her U16 daughters - the best interests of the child need to be considered.
Aiding and abetting offences against U13s
As well as being charged for doing an offence, it has long been possible to be charged with "aiding and abetting" it, and helping someone commit a crime usually carries the same penalty as actually carrying it out.
Here, there are also specific defences [73] to the crimes of aiding and abetting offences covered by sections 5-7 (rape / assault of some someone U-13'), 9 ('sexual activity with a child') & 13 ('offences by someone U18') with the same tests as in section 14.
Marriage exception – the above child offences are not crimes if there are only two lawfully married people involved, including people there in image form only. You'd have to have been married outside the UK, of course, because the minimum marriage age here is 16.
[15] Meeting a child following sexual grooming etc. – someone 18+ who, having at least twice communicated with someone they do not reasonably believe is over 16, meets them or travels to meet them with the intention of committing what would be an offence. Max penalty: six months or a fine in a magistrate's court, 10 years in a crown court.
Introduced after several 'internet panics' – although the communication need not be over the internet – this was attacked in Parliament as a 'thought crime' offence: turn up with condoms and lube to meet someone U-16 after having met them online, for example, and you risk this one even if nothing actually happens.
[16-24] Abuse of position of trust: sexual activity with a child and causing or inciting a child to engage in sexual activity and sexual activity in the presence of a child and causing a child to watch a sexual act – if you are in a position of trust (eg teach or otherwise care for) someone, they need to be 18 before you can touch them sexually / incite them to be sexual / have them present while you or others are sexual. Max penalty: six months or a fine in a magistrate's court, 5 years in a crown court.
There's a defence if you are married to each other, or if the sexual relationship pre-dated the position of trust.
Familial child sex offences
[25-26] Sexual activity with a child family member or Inciting a child family member to engage in sexual activity – Sexual touching of or by someone U13 or who you know to be U18 (with the burden of proof on the defendant to show they did not so know) Max penalty 14 years in a crown court if 18+, otherwise six months or a fine in a magistrate's court or five years in a crown court.
[27] Family relationships – the relationships covered are parent (including past and present foster parents, step-parents, adoptive and biological parents of children who have been adopted), grandparent, brother, sister, half-brother, half-sister, aunt or uncle (the latter two are new to England & Wales), or cousins who have lived in the same household or been regularly involved in caring for the other, or anyone who lives in the same household and is regularly involved in caring for, training, supervising or being in sole charge of the other.
Again, there's a defence if [28] you are married to each other, or [29] if the sexual relationship pre-dated the position of trust.
Offences against persons with a mental disorder
[30-44] Similar to the child sex offences, these apply if your partner is unable to refuse consent because of a mental disorder which means they lack sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason, or is unable to communicate such a choice, and you know or could reasonably be expected to know this. Care workers are also under a higher burden of duty than the general public. Again, there are marriage and 'pre-date' defences.
Indecent photographs of children
[45] Indecent photographs of persons aged 16 or 17 – The law banning possession or creation or distribution of indecent images of children, including entirely fictitious 'pseudo-photographs', is now extended to cover those involving someone who is 16 or 17 unless you are married or living with them, they consented to the image being created and no-one else is involved in the image or sees it...
... unless you are involved in the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, or working for the Security Service or GCHQ and doing it as part of your job!
Abuse of children through prostitution and pornography
[51] A person is 'involved in pornography' if an indecent image of that person is recorded.
Someone is a 'prostitute' if they have, on at least one occasion and whether or not compelled to do so, offered or provided sexual services to another person in return for any financial arrangement.
[47] Paying for sexual services of a child – Anyone paying (or having another financial arrangement) so you can be sexual with someone U13 or you do not reasonably believe to be 18+. Max penalty: if they're U13, and penetration (either way) was involved, life (but this would already attract this penalty under other clauses); if otherwise U16, 14 years; or six months or a fine in a magistrate's court, 7 years in a crown court if 16 or 17.
[48-50] Causing or inciting or Controlling or Arranging or facilitating child prostitution or child pornography – Inciting or controlling or facilitating any of the activities of someone U13 or someone they know to be U18 relating to their prostitution or involvement in pornography in any part of the world. Max penalty of six months or a fine in a magistrate's court, 14 years in a crown court.
Exploitation of prostitution
[52] Causing or inciting prostitution for gain
(1) A person commits an offence if—
(a) he intentionally causes or incites another person to become a prostitute in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.[53] Controlling prostitution for gain
(1) A person commits an offence if—
(a) he intentionally controls any of the activities of another person relating to that person's prostitution in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.These two clauses were introduced unexpectedly after the start of the bill's progress through Parliament.
The first will ensure that no sensible escort agency etc will say 'no experience required' when advertising for staff. It's ok – under this clause anyway – to employ someone who's already a prostitute, ie someone who's ever given any sexual service for money. But employing someone who says they never have done so will become very risky.
Before the extent of the second is understood, we will need to see the outcome of some prosecutions. However, when it was going through Parliament, the explanatory notes (which are not legally binding, but provide an insight into the intentions of legislation) gave as an example of the behaviour that might be caught by this offence “where A requires or directs B to charge a certain price or to use a particular hotel for [their] sexual services [..] and B complies with this request or direction” ie this would catch anyone running an escort agency found to involve prostitution.
[54] Gain – which is not necessary for the child offences above – means any financial advantage, including receiving something (including sexual services) free or at a discount, or the goodwill of any person who is likely, in time, to bring financial advantage. Max penalty: six months or a fine in a magistrate's court, seven years in a crown court.
Ammendments relating to prostitution
[55] Penalties for keeping a brothel used for prostitution – Despite the above 'controlling for gain' clause, at a late stage in the bill's progress, the police successfully lobbied government to increase the 'Penalties For Keeping A Brothel' in the 1956 Sexual Offences Act to cover those cases where they could not prove control. As 'brothel' has a somewhat wide definition, the clause as eventually settled on introduces a new section 33A to the 1956 Act covering only those brothels involving prostitution:
“It is an offence for a person to keep, or to manage, or act or assist in the management of, a brothel to which people resort for practices involving prostitution (whether or not also for other practices).”
Max penalty: six months or a fine in a magistrate's court, seven years in a crown court.
Management, owners and staff of gay saunas, sex clubs or any other premises used by more than one person for 'fornication' – thus probably including every hotel in the UK – remain liable to section 33 in the 1956 Act, which carries up to three months imprisonment.
[56] Extension of gender-specific prostitution offences – Sexual Offences Act 1956 (c. 69) Permitting premises to be used for prostitution, Street Offences Act 1959 (c. 57) Loitering or soliciting for purposes of prostitution, and Sexual Offences Act 1985 (c. 44) Kerb-crawling become gender-neutral, covering both men and women.
Trafficking
[57-59] Trafficking into or within or out of the UK for sexual exploitation – Arranging or facilitating the movement of someone when intending to do or facilitate anything which if done would involve the commission of an offence [60] in this Act or in the Protection of Children Act 1978 if it happened in England and Wales and you are any sort of British citizen or subject. Max penalty: six months or a fine in a magistrate's court, fourteen years in a crown court.
We think drivers for escorts will be safe from this one – voluntary prostitution remains legal, but if the owners of an escort service are being done for Controlling Prostitution for Gain, their drivers may be at risk of this.
Preparatory offences
[61] Administering a substance with intent – Giving someone substance without their consent with the intention of stupefying or overpowering them, so as to enable any person to engage in a sexual activity with them. Max penalty: six months or a fine in a magistrate's court, ten years in a crown court.
[62-63] Committing an offence with intent to commit a sexual offence and Trespass with intent to commit a sexual offence – Max penalty: six months or a fine in a magistrate's court, ten years in a crown court, unless kidnap or false imprisonment involved, when life.
Sex with an adult relative
[64-65] Sex with an adult relative: penetration and consenting to penetration – Relative means parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. Max penalty: six months or a fine in a magistrate's court, two years in a crown court.
Other offences
[66] Exposure – Intentionally exposing your genitals, intending someone will see them and be caused alarm or distress. Objections from naturists led to 'knowing or intending' someone was alarmed being reduced to just 'intending'. As a result, no-one should ever be convicted of this: 'I didn't intend them to be alarmed, I intended them to be impressed!' Max penalty: six months or a fine in a magistrate's court, two years in a crown court.
[67] Voyeurism - Obtaining sexual gratification by observing (including indirectly, eg via CCTV) or recording another person doing a private act, or enabling others to observe them (eg via a webcam), or preparing to do so (eg by drilling spy-holes to allow later viewing) when you know they don't consent to being observed for sexual gratification. A person is doing a private act [68] if they are in a structure which would reasonably be expected to provide privacy, and the person's genitals, buttocks or breasts are exposed or covered only with underwear, or the person is using a lavatory, or the person is doing a sexual act that is not of a kind ordinarily done in public. Max penalty: six months or a fine in a magistrate's court, two years in a crown court.
[69] Intercourse with an animal – vaginal or anal, either way (oral sex with animals remains legal!) Max penalty: six months or a fine in a magistrate's court, two years in a crown court.
[70] Sexual penetration of a corpse – Max penalty: six months or a fine in a magistrate's court, two years in a crown court.
[71] Sexual activity in a public lavatory – Sexual activity (based on what a reasonable person would consider sexual, rather than the participant's purpose) in a lavatory to which a section of the public has access, whether on payment or otherwise. Max penalty: six months or a fine in a magistrate's court. Already illegal under public order legislation, but insisted on by the House of Lords after a government briefing (with this intent?) to the press that 'sex in toilets' would be legalized as the bill then stood.
Offences outside the United Kingdom
[72] Offences outside the United Kingdom – if you do something that's illegal in another country which is also illegal here under this act, you can be charged with it here.
Other thingsPart 2 of the Act – which extends to Scotland – extends the 'sex offenders register', although men guilty of homosexual offences abolished by this act can now be removed. You really do not want to even accept a caution for a sexual offence.
Sentence Time on register 30+ months imprisonment 7 - 29 months 0 - 6 months Caution Conditional discharge Other eg fine, or community service * Halved if U18 at the the time of offence
(At one point, this table wrongly indicated that the registration period for someone who has been cautioned is five years - the figure of two years above is correct.)
People found not guilty by reason of insanity are now also registered.
People on the register must notify the police within three days of any move or seven days in advance of any foreign travel for three or more days.
New Sexual offences prevention orders may be made by a court on conviction etc. for a violent or sexual offence, or following an application by the police in respect of a person with such a conviction etc. living in the community. An order lasts for at least five years and may prohibit the offender from doing anything specified in it thought necessary to protect the public or any particular members of the public from serious sexual harm, eg preventing an offender from contacting his victims or from taking part in sporting activities that involve close contact with children or from living in a household with girls under 16.
A new Foreign travel order will enable the courts to prohibit those who have been convicted etc of a sexual offence against a child under 16 anywhere in the world from travelling abroad where and so far as it is necessary to do so to protect a child or children from serious sexual harm. A foreign travel order may be made on application by the police to the magistrates' court and, if made, will place a prohibition on a sex offender from travelling abroad either to a named country or countries, to anywhere in the world other than a named country or to anywhere in the world.
Risk of sexual harm orders are a new civil, preventative order for which the police can apply to a Magistrates' Court in respect of a person over the age of 18 who has on at least two occasions engaged in sexually explicit conduct or communication with a child or children and there is reasonable cause to believe that the order is necessary to protect a child or children from harm arising out of future such acts by the defendant. The defendant may or may not have a conviction for a sexual (or any other) offence.
Click here for more details of what may happen if it all goes worng and you are in trouble.
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