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(a) in relation to England and Wales, the meaning given by section | |
1 of the Care Standards Act 2000 (c. 14), and | |
(b) in relation to Northern Ireland, the meaning that would be | |
given by Article 90(1) of the Children (Northern Ireland) Order | |
1995 (S.I. 1995/755 (N.I. 2)) if in Article 91(2) of that Order | 5 |
paragraphs (b), (c), (f) and (g) and the words after paragraph (h) | |
were omitted; | |
“community home” has the meaning given by section 53(1) of the | |
Children Act 1989 (c. 41); | |
“hospital”— | 10 |
(a) in relation to England and Wales, means a hospital within the | |
meaning given by section 128(1) of the National Health Service | |
Act 1977 (c. 49), or any other establishment which is a hospital | |
within the meaning given by section 2(3) of the Care Standards | |
Act 2000; | 15 |
(b) in relation to Northern Ireland, has the meaning given by | |
Article 2(2) of the Health and Personal Social Services (Northern | |
Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)); | |
“private hospital” has the meaning given by Article 90(2) of the Mental | |
Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)); | 20 |
“residential family centre” has the meaning given by section 22 of the | |
Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3); | |
“voluntary home” has— | |
(a) in relation to England and Wales, the meaning given by section | |
60(3) of the Children Act 1989, and | 25 |
(b) in relation to Northern Ireland, the meaning given by Article | |
74(1) of the Children (Northern Ireland) Order 1995. | |
25 Sections 18 to 22: marriage exception | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 18 to 22 against another person (B) is not an offence under that section | 30 |
if they are lawfully married at the time. | |
(2) In proceedings for such an offence it is for A to prove that he and B were | |
lawfully married at the time. | |
26 Sections 18 to 22: sexual relationships which pre-date position of trust | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | 35 |
sections 18 to 22 against another person (B) is not an offence under that section | |
if, immediately before the position of trust arose, a sexual relationship existed | |
between A and B. | |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | |
B would have been unlawful. | 40 |
(3) In proceedings for an offence under any of sections 18 to 22 it is for the | |
defendant to prove that such a relationship existed at that time. | |
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27 Sections 18 to 22: existing sexual relationships | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 18 to 22 against another person (B) is not an offence under that section | |
if— | |
(a) immediately before the commencement of that section, a sexual | 5 |
relationship existed between A and B, and | |
(b) the conduct would (apart from this section) constitute the offence only | |
because any of subsections (6) to (8) of section 23 applies. | |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | |
B would have been unlawful. | 10 |
(3) In proceedings for an offence under any of sections 18 to 22 it is for the | |
defendant to prove that such a relationship existed at that time. | |
Familial child sex offences | |
28 Sexual activity with a child family member | |
(1) A person (A) commits an offence if— | 15 |
(a) he intentionally touches another person (B), | |
(b) the touching is sexual, | |
(c) the relation of A to B is within section 30, and | |
(d) B is under 18. | |
(2) Where in proceedings for an offence under this section the defendant proves | 20 |
that he believed that the other person was 18 or over, he is not guilty of the | |
offence unless it is proved that his belief was unreasonable. | |
(3) Where in proceedings for an offence under this section— | |
(a) it is proved that the relation of the defendant to the other person was of | |
a description falling within section 30, and | 25 |
(b) the defendant proves that he did not know that his relation to the other | |
person was of that description, | |
he is not guilty of the offence unless it is proved that he could reasonably have | |
been expected to know that his relation to the other person was of that | |
description. | 30 |
(4) Section 76 applies to an offence under this section. | |
(5) A person guilty of an offence under this section, if aged 18 or over at the time | |
of the offence, is liable on conviction on indictment to imprisonment for a term | |
not exceeding 14 years. | |
(6) Unless subsection (5) applies, a person guilty of an offence under this section | 35 |
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. | 40 |
29 Inciting a child family member to engage in sexual activity | |
(1) A person (A) commits an offence if— | |
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(a) he intentionally incites another person (B) to touch, or allow himself to | |
be touched by, A, | |
(b) the touching is sexual, | |
(c) the relation of A to B is within section 30, and | |
(d) B is under 18. | 5 |
(2) Where in proceedings for an offence under this section the defendant proves | |
that he believed that the other person was 18 or over, he is not guilty of the | |
offence unless it is proved— | |
(a) that his belief was unreasonable, or | |
(b) that the other person was under 13. | 10 |
(3) Where in proceedings for an offence under this section— | |
(a) it is proved that the relation of the defendant to the other person was of | |
a description falling within section 30, and | |
(b) the defendant proves that he did not know that his relation to the other | |
person was of that description, | 15 |
he is not guilty of the offence unless it is proved that he could reasonably have | |
been expected to know that his relation to the other person was of that | |
description. | |
(4) A person guilty of an offence under this section, if aged 18 or over at the time | |
of the offence, is liable on conviction on indictment to imprisonment for a term | 20 |
not exceeding 14 years. | |
(5) Unless subsection (4) 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 a fine not exceeding the statutory maximum or both; | 25 |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
5 years. | |
30 Family relationships | |
(1) The relation of one person (A) to another (B) is within this section if— | |
(a) it is within any of subsections (2) to (4), or | 30 |
(b) it would be within one of those subsections but for section 67 of the | |
Adoption and Children Act 2002 (c. 38) (status conferred by adoption). | |
(2) The relation of A to B is within this subsection if— | |
(a) one of them is the other’s parent, grandparent, brother, sister, half- | |
brother, half-sister, aunt or uncle, | 35 |
(b) one of them is or has been the other’s step-parent, or | |
(c) A is or has been B’s foster parent. | |
(3) The relation of A to B is within this subsection if A and B live or have lived in | |
the same household, or A is or has been regularly involved in caring for, | |
training, supervising or being in sole charge of B, and— | 40 |
(a) one of them is or has been the partner of the other’s parent, | |
(b) one of them is or has been the partner or spouse of the other’s aunt or | |
uncle, | |
(c) A and B are cousins, or | |
(d) the parent of one of them is or has been the other’s foster parent. | 45 |
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(4) The relation of A to B is within this subsection if— | |
(a) A and B live in the same household, and | |
(b) A is regularly involved in caring for, training, supervising or being in | |
sole charge of B. | |
(5) For the purposes of this section— | 5 |
(a) “aunt” means the sister or half-sister of a person’s parent, and “uncle” | |
has a corresponding meaning; | |
(b) “cousin” means the child of an aunt or uncle; | |
(c) a person is a child’s foster parent if— | |
(i) he is a person with whom the child has been placed under | 10 |
sections 23(2)(a) or 59(1)(a) of the Children Act 1989 (c. 41) | |
(fostering for local authority or voluntary organisation), or | |
(ii) he fosters the child privately, within the meaning given by | |
section 66(1)(b) of that Act; | |
(d) a person is another’s partner (whether they are of different sexes or the | 15 |
same sex) if they live together as partners in an enduring family | |
relationship. | |
31 Sections 28 and 29: marriage exception | |
(1) Conduct by a person (A) which would otherwise be an offence under section | |
28 or 29 against another person (B) is not an offence under that section if they | 20 |
are lawfully married at the time. | |
(2) In proceedings for such an offence it is for A to prove that he and B were | |
lawfully married at the time. | |
32 Sections 28 and 29: existing sexual relationships | |
(1) Conduct by a person (A) which would otherwise be an offence under section | 25 |
28 or 29 against another person (B) is not an offence under that section if, | |
immediately before the commencement of that section, a sexual relationship | |
existed between A and B. | |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | |
B would have been unlawful. | 30 |
(3) In proceedings for an offence under section 28 or 29 it is for the defendant to | |
prove that such a relationship existed at that time. | |
Offences against persons with a mental disorder or learning disability | |
33 Sexual activity with a person with a mental disorder or learning disability | |
(1) A person (A) commits an offence if— | 35 |
(a) he intentionally touches another person (B), | |
(b) the touching is sexual, | |
(c) B is unable to refuse because of a mental disorder or learning disability, | |
and | |
(d) A knows or could reasonably be expected to know that B has a mental | 40 |
disorder or learning disability and that because of it B is likely to be | |
unable to refuse. | |
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(2) B is unable to refuse if— | |
(a) he lacks the capacity to choose whether to agree to the touching | |
(whether because he lacks sufficient understanding of the nature or | |
possible consequences of what is being done, or for any other reason), | |
or | 5 |
(b) he is unable to communicate such a choice to A. | |
(3) Section 76 applies to an offence under this section. | |
(4) A person guilty of an offence under this section is liable, on conviction on | |
indictment— | |
(a) where subsection (5) applies, to imprisonment for life; | 10 |
(b) in any other case, to imprisonment for a term not exceeding 14 years. | |
(5) This subsection applies if the touching involved— | |
(a) penetration of B’s anus or vagina with a part of A’s body or anything | |
else, | |
(b) penetration of B’s mouth with A’s penis, | 15 |
(c) penetration of A’s anus or vagina with a part of B’s body, or | |
(d) penetration of A’s mouth with B’s penis. | |
34 Causing a person with a mental disorder or learning disability to engage in | |
sexual activity | |
(1) A person (A) commits an offence if— | 20 |
(a) he intentionally causes a person (B) to engage in an activity, | |
(b) the activity is sexual, | |
(c) B is unable to refuse because of a mental disorder or learning disability, | |
and | |
(d) A knows or could reasonably be expected to know that B has a mental | 25 |
disorder or learning disability and that because of it B is likely to be | |
unable to refuse. | |
(2) B is unable to refuse if— | |
(a) he lacks the capacity to choose whether to agree to engaging in the | |
activity caused (whether because he lacks sufficient understanding of | 30 |
the nature or possible consequences of the activity, or for any other | |
reason), or | |
(b) he is unable to communicate such a choice to A. | |
(3) Section 76 applies to an offence under this section. | |
(4) A person guilty of an offence under this section is liable, on conviction on | 35 |
indictment— | |
(a) where subsection (5) applies, to imprisonment for life; | |
(b) in any other case, to imprisonment for a term not exceeding 14 years. | |
(5) This subsection applies if the activity caused involved— | |
(a) penetration of B’s anus or vagina, | 40 |
(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. | |
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