Sexual Offences Act 2003

Infobox UK Legislation
short_title= Sexual Offences Act 2003
parliament=United Kingdom Parliament
long_title=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.
statute_book_chapter=2003 c. 42
introduced_by=
territorial_extent= UK (England, Wales, Scotland, N. Ireland)
royal_assent=20 November 2003
commencement=20 November 2003 (S138 & S141-S143); 1 May 2004 (full)
amendments=
related_legislation=
status= Current
original_text=http://www.opsi.gov.uk/acts/acts2003/ukpga_20030042_en_1
activeTextDocId=820904|

The Sexual Offences Act 2003 is an Act of Parliament in the United Kingdom that was passed in 2003 and became law on 1 May 2004. [ [http://www.wikicrimeline.co.uk/index.php?title=Sexual_offences_act_2003 Sexual Offences Act 2003 - CrimeLine from Andrew Keogh ] ]

It replaced older sexual offences laws with more specific and explicit wording. It also created several new offences such as non-consensual voyeurism, assault by penetration, causing a child to watch a sexual act, and penetration of any part of a corpse.

Major Changes

Part I of the Act makes many changes to the sexual crimes laws in England and Wales (and to some extent Northern Ireland), including reforming law dating as far back as the Sexual Offences Act of 1956.

Rape has been redefined from the Sexual Offences Act 1956 (amended in 1976 and 1994) to read:

"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."

Rape previously did not include penetration of the mouth. The Act also changes the way in which lack of consent may be proved, and section 75 and 76 of the Act list circumstances in which lack of consent may be presumed.

A new offence of "assault by penetration" is defined as penetration with any object to the anus or vagina.

The act also now includes provisions against sex tourism. People who travel abroad with the intent to commit sexual offences can have their passports revoked or travel restricted. However, this part of the Act has yet to be enforced by a test case in the UK and has been criticised by numerous high profile litigants due to its complexities.Fact|date=May 2008

The definition of child pornography has been changed to also include images of 16 and 17 year olds (note that the age of consent remains at 16).

Group homosexual sex has been decriminalised.Fact|date=May 2008

Part II of the Act also consolidated the provisions of the Sex Offenders Act 1997 on registration of sex offenders and protective orders. These provisions generally apply throughout the United Kingdom.Fact|date=May 2008

Section 75

Section 75 of the act introduces a number of evidential presumptions in relation to consent that the defendant must overturn if the prosecution proves existed at the time of intercourse or other relevant sexual act (such as the fact that victim was asleep) that the victim didn't or couldn't consent. To do this, the defendant would be required to give sworn evidence, which would require him taking the stand, thus leaving himself open to cross-examination by the prosecution. Section 75 doesn't shift the burden of proof from the prosecution but, by refusing to give evidence, the defendant effectively admits that the victim did not or could not consent.

Section 76

Section 76 of the act introduces a number of conclusive presumptions. These are where the defendant deceives the victim to the nature or purpose of relevant act (i.e. fraud) and where the defendant induces the victim to consent by impersonating someone known to the complainant. Where this it is proven the law states that it is conclusively presumed that the defendant did not believe that the complainant consented to the relevant act and the complainant did not consent to the relevant act.

Dual Criminality

Section 72 provides differing levels of dual criminality for specified offences according to the UK citizenship status of an offender. For UK nationals, acts performed outside the UK that would amount to an offence in the UK can be prosecuted as if they had been performed in the UK, regardless of how those acts are treated by the law of the other country.

Criticisms

The Act has faced criticism on several grounds, the most controversial of which is the criminalizing of various common behaviours, such as laws which, on the face of it, outlaw consensual "sexual hugging" in public places or by underage persons, even when both participants are underage, followed by the issue of guidance notes which countermand thisFact|date=January 2008, saying they should almost never be prosecutedDubious|date=March 2008.

The law is unique since neither the Home Office nor the Police have any intention of policing it or prosecuting those who break it except in extreme circumstances. This has not changed much; the Police and the Crown Prosecution Service claim they have not been actively pursuing underage sex by teenagersFact|date=January 2008Dubious|date=March 2008.

The Home Office says legalising consensual sexual activity between children "would damage a fundamental plank in our raft of child protection measures". [http://news.bbc.co.uk/1/hi/magazine/3672591.stm BBC Magazine article] ] A spokesman said, "We are not prepared to do this. We accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it. We are putting safeguards in place to ensure that these cases, which are not in the public interest, are not prosecuted - by amending guidance to the police and Crown Prosecution Service".

Criticism comes from Action on Rights for ChildrenFact|date=January 2008: "Laws should mean what they say. It's astonishing that the government could consider legislation with the prior intent of issuing guidance to countermand it. I worry about the message it sends to young people - it seems to say that sometimes the law means what it says and sometimes it doesn't.". Spokesperson Terri Dowty also fears that it could lead to unreasonable private prosecutions, such as by angry parents who don't like their child's boyfriend or girlfriend.

Professor Nicola Lacey of the London School of Economics comments: "What the Home Office would say was that they wanted to use the criminal law for symbolic impact, to say that it's not a good thing for kids to be having sex. My counter-argument is that the criminal law is too dangerous a tool to be used for symbolic purposes. With this on the statute book, it will give police and prosecutors a lot of discretion. It could be used as a way of controlling kids who perhaps the police want to control for other reasons. Kids who perhaps are a nuisance or who belong to a group who attract the attention of the police in some way.".

Transition from old to new law

The 2003 Act repealed various sections of the Sexual Offences Act 1956 and several other statutes dealing with sexual offences. Section 141 of the Act gave the Home Secretary the power to make rules by statutory instrument to deal with the transition from the old to the new laws, to cover the situation where a defendant is charged with offences which overlap the commencement date of 1 May 2004. However no such "transitional provisions" were ever made. This resulted in cases where, when a defendant was accused of committing a sexual offence but the prosecution could not prove the exact date, and the offence could have been committed either before or after 1 May 2004, he had to be found not guilty, regardless of how strong the evidence against him was. This was because a sexual offence committed before 1 May was an offence under the old law, but an offence committed on or after that date was a different offence under the new law. For example, an assault might either be indecent assault under the 1956 Act, or the new offence of sexual assault under the 2003 Act, depending on when it happened, but it could not be both. If the prosecution could not prove beyond reasonable doubt which offence had been committed, then the defendant could be convicted of neither.

The Court of Appeal first dealt with this problem in December 2005, when the prosecution appealed against the decision of a judge to order a jury to acquit a defendant for precisely that reason. Dismissing the appeal, Lord Justice Rose said: "If a history of criminal legislation ever comes to be written it is unlikely that 2003 will be identified as a year of exemplary skill in the annals of Parliamentary drafting." [R v C, [2005] EWCA Crim 3533; (2006) 1 Cr App R 28; "Times", 5 January 2006]

This situation was not resolved until Parliament passed section 55 of the Violent Crime Reduction Act 2006 [http://www.opsi.gov.uk/acts/acts2006/60038--f.htm#55] (which came into force in February 2007).

Extent and Repeals

The Act applies to England and Wales only except for the provisions listed in s.142(2) of the Act which also apply to Northern Ireland and the provisions listed in s.142(3) of the Act which also apply to Scotland. The Act repealed the Sex Offences Act 1997 in its entirety.

ee also

*Violent and Sex Offender Register

References

Further reading

*Kim Stevenson, Anne Davies, and Michael Gunn, "Blackstone's Guide to the Sexual Offences Act 2003", Oxford: Oxford University Press, 2003.

External links

*UK-SLD|820904
* [http://www.legislation.hmso.gov.uk/acts/acts2003/20030042.htm Sexual Offences Act 2003] as originally enacted, from the UK Parliament website
* [http://news.bbc.co.uk/1/hi/magazine/3672591.stm "Teenage kissing: The new sex crime?"] by Giles Wilson, BBC, 30 April 2004
* [http://www.arch-ed.org/ Action on Rights of Children]
* [http://www.wikicrimeline.co.uk/index.php?title=Sexual_offences_act_2003 WikiCrimeLine Sexual offences act 2003: Commentary]