Engaging in sexual activity in the presence of a child

(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, and

(d) either—

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(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 10 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.

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.

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.