Sexual Offences Act 2003

Abuse of position of trustE+W

16Abuse of position of trust: sexual activity with a childE+W

[F1(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 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.]

Textual Amendments

17Abuse of position of trust: causing or inciting a child to engage in sexual activityE+W

[F2(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)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 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.]

Textual Amendments

18Abuse of position of trust: sexual activity in the presence of a childE+W

[F3(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)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

(f)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 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.]

Textual Amendments

19Abuse of position of trust: causing a child to watch a sexual actE+W

[F4(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)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 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.]

Textual Amendments

20Abuse of position of trust: acts done in ScotlandE+W

[F5Anything which, if done in England and Wales F6. . . , would constitute an offence under any of sections 16 to 19 also constitutes that offence if done in Scotland [F7or Northern Ireland].]

Textual Amendments

21Positions of trustE+W

[F8(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 [F9in accordance with section 22C(6)] of the Children Act 1989 (c. 41) [F10or section 81(6) of the Social Services and Well-being (Wales) Act 2014] F11..., or

(b)accommodation is provided by a voluntary organisation under section 59(1) of [F12the Children Act 1989] F13...,

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)[F14in Wales,] an independent clinic,

(c)a care home, F15...

(d)a community home, voluntary home or children’s home, [F16or]

(e)a home provided under section 82(5) of the Children Act 1989, F17...

F18(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F19(g)a place in Wales at which a care home service is provided,]

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.

F20(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 (c. 50), or

[F21(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 (c. 41) [F22or section 76 or 77 of the Social Services and Well-being (Wales) Act 2014], F23...

F23(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 F24... 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, F25... [F26or]

[F27(aa)section 106(1) of the Social Services and Well-being (Wales) Act 2014 in respect of category 1 or 2 young persons within the meaning of that Act,]

F25(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 [F28or 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), F29...

(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) F30..., [F31or]

[F32(d)is appointed to be the children’s guardian of B under rule 59 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795) or rule 16.3(1)(ii) or rule 16.4 of the Family Procedure Rules 2010 (S.I. 2010/2955),]

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.]

Textual Amendments

F9Words in s. 21(3)(a) substituted (E.W.) (1.4.2011 for E., 6.4.2016 for W.) by Children and Young Persons Act 2008 (c. 23), ss. 8(2), 44(4), Sch. 1 para. 15; S.I. 2010/2981, art. 4(a); S.I. 2016/452, art. 2(b)

F28Words in s. 21(12)(a) inserted (E.W.) (1.4.2005) by Children Act 2004 (c. 31), ss. 40, 67, Sch. 3 para. 18; S.I. 2005/700, art. 2(2)

22Positions of trust: interpretationE+W

[F33(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;

    (b)

    F34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “care home” means an establishment [F35in England] which is a care home for the purposes of the Care Standards Act 2000 (c. 14);

  • [F36“care home service” has the meaning given in Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2);]

  • “care order” has—

    (a)

    in relation to England and Wales, the same meaning as in the Children Act 1989 (c. 41); F37. . .

    (b)

    F37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “children’s home” has—

    (a)

    in relation to England F38..., the meaning given by section 1 of the Care Standards Act 2000; F39. . .

    (b)

    F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “community home” has [F40, in relation to England] 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; F41. . .

    (b)

    F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    • [F42“hospital” means—

      (a)

      a hospital as defined by section 275 of the National Health Service Act 2006, or section 206 of the National Health Service (Wales) Act 2006; or

      (b)

      any other establishment—

      (i)

      in England, in which any of the services listed in subsection (6) are provided; and

      (ii)

      in Wales, which is a hospital within the meaning given by section 2(3) of the Care Standards Act 2000;]

  • “independent clinic” has—

    (a)

    F43. . . the meaning given by section 2 of the Care Standards Act 2000;

    (b)

    F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “supervision order” has—

    (a)

    in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989 (c. 41);F46. . .

    (b)

    F46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “voluntary home” has—

    (a)

    in relation to England F47..., the meaning given by section 60(3) of the Children Act 1989. F48. . .

    (b)

    F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F49(6)The services referred to in paragraph (b)(i) of the definition of “hospital” are as follows—

(a)medical treatment under anaesthesia or intravenously administered sedation;

(b)dental treatment under general anaesthesia;

(c)obstetric services and, in connection with childbirth, medical services;

(d)termination of pregnancies;

(e)cosmetic surgery, other than—

(i)ear and body piercing;

(ii)tattooing;

(iii)the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv)the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.]]

Textual Amendments

F34S. 22(5): paragraph (b) of the definition of "authority" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(a); S.R. 2008/510, art. 2

F37S. 22(5): paragraph (b) and word in paragraph (a) of the definition of "care order" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(b); S.R. 2008/510, art. 2

F39S. 22(5): paragraph (b) and word in paragraph (a) of the definition of "children's home" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(c); S.R. 2008/510, art. 2

F41S. 22(5): paragraph (b) and word in paragraph (a) of the definition of "education supervision order" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(d); S.R. 2008/510, art. 2

F43S. 22(5): words in definition of "independent clinic" omitted (1.10.2010) by virtue of The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 13(3)(a)(ii)

F44S. 22(5): paragraph (b) of the definition of "independent clinic" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(f); S.R. 2008/510, art. 2

F45S. 22(5): definitions of "private hospital", "residential care home" and "residential family centre" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(g); S.R. 2008/510, art. 2

F46S. 22(5): paragraph (b) and word in paragraph (a) of the definition of "supervision order" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(h); S.R. 2008/510, art. 2

F48S. 22(5): paragraph (b) and word in paragraph (a) of the definition of "voluntary home" omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 7(i); S.R. 2008/510, art. 2

23Sections 16 to 19: [F50exception for spouses and civil partners]E+W

[F51(1)Conduct by a person (A) which would otherwise be an offence under any of sections 16 to 19 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 [F52or civil partners of each other].

(2)In proceedings for such an offence it is for the defendant to prove that A and B [F53were at the time lawfully married or civil partners of each other].]

Textual Amendments

F50S. 23: words in heading substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, Sch. 27 para. 173(4); S.I. 2005/3175, art. 2(1)(2), Sch. 1 (subject to art. 2(3)-(5))

24Sections 16 to 19: sexual relationships which pre-date position of trustE+W

[F54(1)Conduct by a person (A) which would otherwise be an offence under any of sections 16 to 19 against another person (B) is not an offence under that section if, immediately before the position of trust arose, a sexual relationship existed between A and B.

(2)Subsection (1) does not apply if at that time sexual intercourse between A and B would have been unlawful.

(3)In proceedings for an offence under any of sections 16 to 19 it is for the defendant to prove that such a relationship existed at that time.]

Textual Amendments