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 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.

For the purposes of this Part (except sections 15A , 66B to 66D and 71 ), penetration, touching or any other activity is sexual if a reasonable person would consider that—

(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

s.5 rape

s.6 assault by penetration

s.7 sexual assault of a child under 13

s.8 causing or inciting sexual activity with a child

s.8(2) causing or inciting sexual activity with a child

Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.

In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing but only after consideration has been given to the impact on the child and the public interest in proceeding in this way. On no account should a count of rape (section 1) be added as an alternative. Juries should not be asked to deliberate upon issues that are critical to sentence which are not necessary to substantiate a charge in law. Rather these are questions that a judge should consider by hearing evidence on the relevant point and according to the procedure as set out in R v Newton 77 Cr. App. R. 13. See case of Delahaye-Bryan [2015] EWCA Crim 1987.

The section 5 offence is an indictable only offence and carries a maximum sentence of life imprisonment.

Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under 13 with a part of his body, or with anything else.

A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.

The section 6 offence is an indictable only offence and carries a maximum sentence of life imprisonment.

Section 7 makes it an offence for a person to touch a child under 13 sexually.

The section 7 offence is an either way offence and carries a maximum sentence of 14 years' imprisonment.

Section 8 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity.

Section 8 creates two offences to reflect causing or inciting 1) penetrative sexual activity and 2) non-penetrative sexual activity.

The offences cover the situation where sexual activity itself does not take place.

The non-penetrative offence is an either way offence and carries a maximum sentence of 14 years imprisonment.

The penetrative offence is an indictable only offence and carries a maximum sentence of life imprisonment.

A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.

Sections 5 - 8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant. If both the age of the child (that is, under 13) and the elements of the offence can be proved, then sections 5-8 should always be preferred to the main non-consensual offences.

These are offences of strict liability as to age. The prosecution has to prove only two facts.

first, the intentional sexual activity and

second, the age of the complainant at the date of the sexual activity, using, for example, a certified copy of a birth certificate together with evidence of identity.

There is no defence of mistaken reasonable belief in the age of the complainant.

The under-13 offences overlap to a very significant extent with the child sex offences which are designed to protect children under 16 (sections 9-15). However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect children in this age group. This is to ensure the availability of the higher maximum penalties for the under-13 offences and avoid children under 13 giving evidence in relation to consent.

If there is difficulty in proving that the child is under 13 (or was so at the time of the offending) then a charge under sections 9-12 should be considered rather than sections 5-8.

The intention behind the Sexual Offences Act 2003 is to provide maximum protection to very young children, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent.

Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity addressed by sections 5 - 8, a prosecution will normally be required unless there are public interest factors tending against prosecution, which outweigh those tending in favour.

Where the offender is under 18 prosecutors should refer to prosecution guidance on Children as suspects and defendants, and to the additional public interest considerations and factors which must be addressed when considering the prosecution of a youth for a sexual offence.

Where both the suspect and complainant are under 13 years of age any charging decision or subsequent decision to terminate proceedings or substantially alter the charge should be approved by the Chief Crown Prosecutor (CCP).

If the offence is penetrative, section 7 and section 8 become indictable only offences. Prosecutors must specify whether the sexual activity is penetrative or non-penetrative when drafting the indictment.

Where the offence is either way prosecutors should refer to the sentencing guidelines when assessing seriousness.

The definition of sexual is contained within section 78 of the Sexual Offences Act 2003 and applies to all offences in part 1 of the Act, with the exception of section 71 (sexual activity in a public lavatory).

Penetration, touching or any other activity is sexual if a reasonable person would consider that:

whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

In deciding whether an activity is sexual look first at the nature of the activity. If the activity is by its nature sexual (for example, sexual intercourse, masturbation) then it is sexual for the purposes of the legislation.

Where the nature of the activity may or may not be sexual prosecutors should consider the circumstances or purpose (or both) of the defendant in deciding whether it is sexual.

Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.

Touching of clothing might be sexual as in the case of R v H [2005] EWCA Crim 732.