Child sex offences committed by children or young persons

(1) 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) 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.

The 2003 Act provides that the age of consent is 16. Sections 9 -13 clarify that any sexual activity involving consenting children under 16 is unlawful. Sections 9-12 cover adult defendants. Section 13 relates to child defendants.

Section 9 Sexual activity with a child

Section 10 Causing or inciting a child to engage in sexual activity

Section 11 Engaging in sexual activity in the presence of a child

Section 12 Causing a child to watch a sexual act

Key Points:

Consent is irrelevant.

There is a defence of reasonable belief that the child is 16 years or over. The defence of reasonable belief does not apply if the child is under 13 years.

There is no defence for lawfully married overseas couples where one party is under 16.

Sections 9 and 10 create two separate offences of penetrative and non-penetrative sexual activity. If penetration is involved the offence is indictable only. The maximum sentence on indictment is 14 years.

Sections 11 and 12 are either way offences which attract a maximum sentence of 10 years imprisonment.

Under section 11, there is no requirement that the complainant is actually aware of the activity, though there is a requirement that the complainant is present, or could potentially observe it. Observation can be via a webcam and includes an image.

In accordance with section 13 a person under 18 commits an offence if he does anything which would amount to an offence under sections 9-12.

Charging Practice:

When there is an absence of consent, and an absence of reasonable belief in consent, offences contrary to sections 1-4 are also available. However, prosecutors should always have regard to available sentencing options.

Where there is a clear complaint of rape of a child aged 13-15, then a charge of section 1 (rape) should always be preferred to a charge of section 9 (sexual activity with a child). Section 9 should only be considered when the prosecutor concludes that it will not be possible to prove an absence of consent. Prosecutors should be alert to the need for careful consideration of factors such as the presence of coercion, exploitation, and grooming when assessing whether or not the child freely consented.

In cases where there is clear evidence of a familial relationship, offences contrary to section 25 or section 26 (familial child sex offences) should be considered rather than sections 9 or 10.

This section should be read alongside chapter 9 Allegations involving children and young people.

Key Points:

Pursuant to section 13 SOA 2003 it is an offence if a person under 18 commits an act which would amount to an offence under sections 9 - 12.

Pursuant to section 13 the maximum penalty on indictment is reduced to imprisonment to a term not exceeding 5 years.

Prosecutors must also apply the Code and any relevant CPS policies.

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).

In deciding whether or not to prosecute offences contrary to Sections 5-13 SOA 2003, prosecutors should have careful regard to the factors below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. However, when deciding whether it is the public interest to prosecute, prosecutors may exercise more discretion in relation to child sex offences where the complainant is aged 13 - 15 than for those offences where the child is under 13 years.

Prosecutors should have regard to the following factors:

The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has led him or her to commit the offence;

The relevant ages and levels of maturity of the parties, that is, the same or no significant disparity in age;

Whether the complainant entered into sexual activity willingly, that is, did the complainant understand the nature of his or her actions and that (s)he was able to communicate his or her willingness freely;

Parity between the parties in regard to sexual, physical, emotional and educational development;

The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;

Whether there is any element of exploitation, coercion, threat, deception, grooming, seduction, manipulation or breach of trust in the relationship;

Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her/his age was in fact made;

The nature of the activity, for example, penetrative or non-penetrative activity;

The sexual and emotional maturity of the parties and any emotional or physical effects resulting from the conduct; and

The likely impact of any prosecution on the parties.