The Sexual Offences Act Analysis - Essay Example

Introduction The Sexual Offences Act 2003 has as its general aim the prevention of sexual exploitation of children under the age of 16. The age of criminal culpability is ten therefore the list of criminal conduct of a sexual nature can be committed by anyone aged ten and beyond. The 2003 Act criminalizes a wide range of sexual activity in respect of children under the age of 16. These activities include sexual assault, inciting children to engage in any form of sexual activity or forcing a child to watch sexual activities. The Sexual Offences Act 2003 does not provide a defence for a suspect if the child victim is aged 13 or younger. However, if the child victim is older than 13 but younger than 16 a suspect can raise the defence that the child consented to the sexual activity and he or she reasonably believed that said child was at least 16 years of age.1 Critics of the Sexual Offences Act 2003 argue that the Act goes too far by criminalizing legitimate sexual activities of children closer to age 16 and is far too strict on those who are mistaken about the child’s age. This paper examines the reality of this position by dissecting the manner in which the criminal justice system approaches cases in which offences relating to children are interpreted and disposed of. Over-criminalizing legitimate sexual activities of Children Section 13(1) of the Sexual Offences Act 2003 provides as follows: 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 The offences contained in Section 9-12 include sexual assault, inciting children to engage in any form of sexual activity or forcing a child to watch sexual activities. Alarmingly, sexual activity with a child is defined by Section 9 as the intentional touching of ‘another person’ and that other person is under the age of 16 and the person does not reasonably believe the other person to be over the age of 16.3 The act of touching might conceivably be interpreted as sexual in nature and is a matter of fact for a jury to decide.4 In an article published in BBC’s online magazine, Giles Wilson questioned the propriety of the laws role in the age of modern sexual activity among teens. By and large, Wilson argues, the Sexual Offences Act 2003 criminalizes teen age kissing.5 Angela Phillips refers to the Sexual Offences Act 2003 as ‘the child trap’ adding that it is: criminalising not only the predatory paedophile but at the same time the innocent kissing and cuddling of a couple of perfectly normal 15-year-olds.6 When the House of Commons debated the Sexual Offences Bill a number of Representatives took issue with Section 13 as it stood, fearing that it had the impact of criminalizing what could only be described as normal activities between adolescents. In fact, Member of Parliament and Liberal Democrat Women’s Issues Spokesperson, Sandra Gidley said: Criminalising consensual activity between adolescents devalues the suffering of genuine victims of child abuse.7 Liberal Democrat Home Affairs Spokesperson and Member of Parliament Annette Brooke voiced her opinion the Sexual Offences Bill 2003 as follows: Although I welcome the approach to protect children from abuse, there is a danger of criminalising children for innocent activities on their part. We know that sexual activity between the ages of 13 and 16 is fairly common. Surveys show that it is as high as 30 per cent. for males and 26 per cent for females. We must accept life as it is today, although it is of course important that precautions are taken against unwanted pregnancy and advice on the prevention of sexually transmitted diseases is provided. Yes, we must be concerned if kissing and petting become a criminal offence.8 In a letter to the Joint Committee on Human Rights from Action on Rights for Children, the latter pointed out its disappointment that the Sexual Offences Bill 2003 was passed without amendment to provisions such as Section 13 which effectively criminalized ‘consensual sexual activity’ between young persons.9 However, in the Explanatory Notes to the Sexual Offences Act 2003 paragraph 22 cushions the impact of Section 13 of the 2003 Act by providing the following explanatory note:  …In practice (although there is no provision about this in the Act) decisions on whether persons under 18 should be charged with child sex offences will be made by Crown Prosecutors in accordance with the principles set out in the Code for Crown Prosecutors. In deciding whether it is in the public interest to prosecute these offences, where there is enough evidence to provide a realistic prospect of conviction, prosecutors may take into consideration factors such as the ages of the parties; the emotional maturity of the parties; whether they entered into a sexual relationship willingly; any coercion or corruption by a person; and the relationship between the parties and whether there was any existence of a duty of care or breach of trust.10 As Angela Phillips points out, this explanatory note creates more problems than it purports to solve. The difficulty arises in the cross messages it is sending to children. For instance, she wonders how is it plausible to tell children that it is against the law to engage in sexual intercourse before attaining the age of 16 and it is also against the law to kiss before attaining the age of 16, however, its alright to kiss, but wrong to engage in sexual intercourse.11 The explanatory note at paragraph 22 has been highly criticized by Action on Rights for Children. Campaigner for Action on Rights for children, Terri Dowty said: 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 doesnt.12 Apart from the mixed message that the explanatory note at paragraph 22 sends to adolescents, it gives police a wide discretionary power to prosecute children as it sees fit, provided they are engaged in normal adolescent relationships. This kind of discretionary power leaves a lot of room for abusive practices. It can also be used by an angry parent ‘who didn’t like their child’s boyfriend or girlfriend.’13 Consent: Mistake as to Age An essential element of the sexual offences in the Sexual Offences Act 2003 requires that the alleged offender does not reasonably believe that the alleged victim is under the age of 16.14 Previously, mistake as to the age of the alleged victim was not provided for in the Sexual Offences Act 1956 and it the courts were reluctant to imply that a reasonable belief that the alleged victim was at least 16 years old was a necessary element of a sexual offence against a minor. In fact in R v Maughan (1934) 24 Cr. App. R. 130 the Court of Criminal Appeal ruled that on a charge of sexual assault on a child under the age of 16 a ‘bona fide’ belief that the child was at least 16 years old would suffice as a defence.15 In Regina v. K [2002] 1 A.C. 462 the House of Lords held however, that it was to presumed that mens rea was always an essential element of any statutory offence whether it was expressed in words or by implication. While there were no express words contained in Section 14 of the Sexual Offences Act 1956 the prosecution would be required to prove that the defendant did not have a reasonable belief that the complainant was under the age of sixteen. Any other interpretation of Section 14 would lead to absurd results and ‘accordingly, the presumption applied and the prosecution was required to prove absence of genuine belief on the part of the defendant that the girl was sixteen.’16 Section 9(2) of the Sexual Offences Act 1976 provides that: 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.17 By virtue of the ruling in R v Howard [1996] 1W:L.R a jury is at liberty to conclude that the age of the complainant is a factor in determining whether or not she is mentally capable of giving her consent.18 This ruling presents difficulties for any defendant wishing to raise the mistaken age defence if he or she has sexual contact with a fourteen year old that he or she genuinely believed to be at least sixteen years of age. Common law dictates that a reasonable belief that the complainant is at least sixteen years old must be construed to be a genuine or honest belief. When determining whether or not the defendant had a genuine belief that the complainant was at least 16 years old the court must keep in mind the fact that the relevant provision was enacted solely for the purpose of protecting the child.19 It is obvious from this ruling that the judicial temperament regards the defence of mistake as to age very suspiciously and require a very high standard of proof. After all is said and done the defendant has a very onerous task if and when he wishes to raise this defence. The preexisting judicial temperament in relation to the defence of mistaken belief as to age is likely to prevail. The approach taken by Lord Hutton in B v DPP [2000] 1 All ER 833 is demonstrative of the attitude adopted by the courts in respect of the defence of mistaken belief as to age. With reference to sexual offences against a minor as contained in the Sexual offences Act 1956, Lord Hutton said: “The purpose of s 1 is clearly to protect children under the age of 14 from sexual corruption: to protect their sexual integrity...This purpose may be impeded if the happiness and stability of a child under 14 is harmed by the violation of his or her innocence by some act of gross indecency or incitement to gross indecency committed by a person who honestly believes that the child is older than 14."20 Comments made by the Lords in the House of Lords during the hearing of B v DPP [2000] offer some insight to the common approach toward the defence of mistaken belief as to age. No doubt, in a social context the courts are always guided by the overriding purpose of legislation seeking to protect children and young persons from sexual exploitation and exposure to the base desires of predatory adults. Lord Steyn said that: “The [offence] is apt to cover acts of paedophilia and all responsible citizens will welcome effective legislation in respect of such a great social evil.”21 Having said that, Lord Steyn goes further, commenting on the delicate balancing act required of the criminal justice system when dissecting the honest mistake defence. He said: “But it also covers any heterosexual or homosexual conduct between teenagers if one of them is under 14. And the actus reus extends to incitement of a child under 14: words are enough. [It] therefore extends to any verbal sexual overtures between teenagers if one of them is under 14...For the law to criminalise such conduct of teenagers by offences of strict liability would be far reaching and controversial."22 The defence of mistaken belief as to age is required to be an honest mistake and despite the word reasonable inserted within the Sexual Offences Act 2003 the judicial approach is unlikely to waiver. M. Jefferson clearly summarized the current position with regard to mistake as a defence in criminal conduct. He said: "[W]hen intention or subjective recklessness is required as to an element of the crime, an honest mistake will suffice to negative mens rea. When the crime requires proof of negligence, a reasonable mistake will be required."23 The common law development of subjectivism in relation to the defence of mistaken belief as to the complainants age must be read together with the statutory provision for the defence. The general attitude suggests that the defendant’s negligence will be construed to defeat a claim of mistaken belief since implicit in the reguired ‘honest’ element is a requirement that the defendant be mindful and cognizant of factors attributable to the complainant’s age. Helen Power suggest that: “The upshot is… is that the prosecution must prove that the defendant either knew the victim was under 14 or that he was subjectively recklessly indifferent to this fact.”24 Helen Power made a prudent observation just prior to the enactment of the sexual Offences Act 2003. She pointed out that: “Any such provision would have to make it clear that the reasonableness of a defendants mistake as to the victims age would have to be assessed according to the circumstances of particular cases - including relevant characteristics of the defendant. Only thus could the law avoid branding as sex offenders those who are, for instance, inordinately naïve or who otherwise enjoy less than full capacity for choice.” 25 Unfortunately the Sexual Offences Act 2003 makes no such provision and simply leaves the interpretation of the defence of mistaken belief up to the judiciary for construction. Conclusion The CPS maintains that the purpose of the Sexual Offences Act 2003 seeks to bring the law relating to sexual offence within the modern age. This includes the recognition of the fact that there are young people who sexually exploit other young people.26 However the new legislation accomplishes very little by criminalizing innocent conduct between young persons. Moreover, the need to address the increased activity of adult sexual predatory conduct is not curtailed by ignoring the very real possibility that some youngsters under the age of 16 do in fact convincingly pass themselves off as older adults. By ignoring this reality in the modern age, legislators have put the integrity of guiltless adults at risk. Bibliography B v DPP [2000] 1 All ER 833 Explanatory Note to the Sexual Offences Act 2003 Jefferson, M (1999), Criminal Law (4th edition), Pitman Publishing Joint Committee on Human Rights: Twenty-Fifth Report. August 1, 2006 http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/241/24109.htm Viewed April 21, 2007 Phillips, Angela. The Child’s Sex Trap. The Guardian, June 9, 2003 Power, Helen. Sexual Offences, Strict Liability and Mistaken Belief: B v DPP in the House of Lords. 2 Web JCLI  http://webjcli.ncl.ac.uk/2000/issue2/power2.html Viewed April 23, 2007 R v H (2005) 2 Cr. App. R, 149 R v Howard [1996] 1W:L.R R v Maughan (1934) 24 Cr. App. R. 130 Regina v. K [2002] 1 A.C. 462 Sexual Offences Act 2003 Sexual Offences Act 1976 Sexual Offences Bill (Consideration of Lords’ Amendments) July 15, 2003 House of Commons. http://www.libdems.org.uk/parliament/parliamentaryreport.html?id=2380 Viewed April 21, 2007 Wilson, Giles. Teenage Kissing: The New Sex Crime? (n.d.) http://news.bbc.co.uk/2/hi/uk_news/magazine/3672591.stm Viewed April 21, 2007 Read More