Section 23: Sections 16 to 19: marriage exception

49.     Section 23 provides that A will not commit an offence under sections 16 to 19 if he can prove that, at the time of the sexual activity, B was aged 16 or over and he and B were lawfully married to each other.

Section 24: Sections 16 to 19: sexual relationships which pre-date position of trust

50.     Section 24 provides A with a defence to abuse of position of trust offences if he can prove that his sexual relationship with B pre-dated his relationship of trust with B. So if A could prove that he and B had a sexual relationship before A went to work at the school at which B is a pupil, he would not commit an offence by continuing that sexual relationship. The effect of subsection (2) is to limit this to the situation where the sexual relationship that pre-dated the relationship of trust was lawful, so it would not cover for example a relationship with a child of under 16.

Section 25: Sexual activity with a child family member

51.     Section 25 makes it an offence for a person (A) intentionally to touch a family member (as defined in sections 27) aged under 18, where the touching is sexual. The meaning of touching is explained at section 79(8). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at section 78. Additional elements of the offence are that A must know, or be in a position where he could reasonably be expected to know, that the child is his family member and that, except where the child is under 13, he does not reasonably believe that the child is 18 or over.

52.     So if, for example, A has never met the child before, and so does not know, and could not reasonably be expected to know, that she is his sister, and reasonably believes she is over 18, he will not commit this offence by engaging in sexual activity with her, even though she is in fact his sister, and only 14.

53.     In relation to both these last two elements of the offence A is under an evidential burden (subsections (2) and (3)). This means that unless A shows from the evidence that there is an arguable case about these issues, it is presumed that he did not reasonably believe the child to be 18 or over, and that he knew or could reasonably have been expected to know that the child was his family member. Whether or not the child consented to the touching is irrelevant.

Section 26: Inciting a child family member to engage in sexual activity

54.     Section 26 makes it an offence for a person (A) intentionally to incite a child family member (defined in section 27) aged under 18 either to touch A or to allow himself to be touched by A, where the touching is sexual. The meaning of touching is at section 79(8). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at section 78. An example of this offence would be where A encourages B to masturbate A or cajoles B into agreeing to have sex with him. The offence is committed whether or not the sexual touching takes place. So where in the above example A has encouraged B to masturbate him, but the masturbation does not take place because another person enters the room, the offence is nevertheless complete. The two additional elements of the offence (and the evidential burdens) described in relation to section 25 apply to this section too (subsections (1)(d) and (e), (2) and (3)). Whether or not the child consented to the incitement, or the activity being incited is irrelevant.

Section 27: Family relationships

55.     Section 27 lists the relationships relevant for the purposes of sections 25 and 26. Section 67 of the Adoption and Children Act 2002 provides that an adoptive child is the child of the adoptive parents and not the biological parents. Adoptive relationships are therefore covered by subsection (1)(a). The categories at subsections (2) to (4) also apply (by virtue of subsection (1)(b)) to the adoptive child's biological family relationships. These relationships fall into three categories.

56.     The first category of relationships is listed in subsection (2). Definitions of the relationships mentioned at subsection (2) are at subsection (5)(a) to (c). Persons whose relationships fall within this category will always be each other's family members for the purposes of sections 25 and 26. Even where there is no blood relationship and the relationship can therefore cease - as in the case of foster parents - this offence may be committed for as long as the victim is under 18. So for example even where A is no longer a child's foster parent, A will commit an offence by having sex with that child while the child is under 18.

57.     The second category of relationships is listed in subsection (3). The relationship between A and a child will only fall within this category for the purposes of sections 25 and 26 if A lives, or has lived, in the same household as the child or is, or has been, regularly involved in caring for, training or supervising or being in sole charge of the child. Subsection (3)(a) relates to step-parents, (3)(b) relates to cousins, (3)(c) relates to step-siblings and (3)(d) relates to foster-siblings. The definition of foster parent is at subsection (5)(c) and the definition of step-parent, stepbrother and stepsister is at subsection (5)(e). An example within this category would be a person (A) who lives or has lived in the same house as his first cousin who is under 18. If the cousins had never lived in the same household, A would not commit this offence by having a sexual relationship with the cousin. As with the first category, if the relationship ceases (for example A ceases to be the partner of the child's mother), the offence will still be committed if A has sex with the child while the child is under 18.

58.     An example of the third category of relationships (at subsection (4)) would be where a child is living in the same household as an au pair who looks after him. This category of relationship differs from the other two categories in that an offence will not be committed if A has a sexual relationship with the child after the relationship has ceased, even where the child is under 18. So, in this example, if the au pair were to leave the household and/or cease to have responsibility for the child, then the relationship would no longer be relevant for the purposes of sections 25 or 26

Section 28: Sections 25 and 26: marriage exception

59.     This section provides A with a defence to the offences under sections 25 and 26 if he can prove that at the time of the act the child was aged 16 or over and he was lawfully married to the child.

Section 29: Sections 25 and 26: sexual relationships which pre-date family relationships

60.     This section provides A with a defence to the offences under sections 25 and 26 if he can prove that his sexual relationship with the child pre-dated the start of the familial relationship as defined in section 27. Thus, for example, where two divorced people meet because their respective 16 and 17 year old children are engaged in a sexual relationship and the parents decide to marry, if all four persons were to move into the same household the criminal law would not interfere in the ongoing sexual relationship between the children, even though they would otherwise have been brought within the scope of the offence. This defence is not available where A and the child are related as set out in section 27(2) (whether by blood or adoption). The effect of subsection (2) is to limit this to the situation where the sexual relationship was lawful so it would not cover for example a relationship with a child of under 16.

Section 30: Sexual activity with a person with a mental disorder impeding choice

Section 31: Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity

Section 32: Engaging in sexual activity in the presence of a person with a mental disorder impeding choice

Section 33: Causing a person, with a mental disorder impeding choice, to watch a sexual act

61.     All the offences in these sections are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder and because of that mental disorder, or for reasons related to it, B is unable to refuse involvement in the sexual activity. "Mental disorder" is stated at section 79(6) to have "the meaning given by section 1 of the Mental Health Act 1983". In section 1(2) of that Act, subject to section 1(3), mental disorder is defined as "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind." A person with a "learning disability" would fall within this definition. The definition of sexual activity is at section 78. Subsection (2) of each section contains a definition of what is meant by B being unable to refuse.

62.     The offences are divided according to the different types of sexual activity (the types of sexual activity covered are the same as for the child sex offences (sections 9 to 12)).

63.     Section 30 covers touching, which as section 79(8) explains, includes any type of physical contact including penetration.

64.     Section 31 covers the situation where A causes or incites B to engage in sexual activity, for example, where A causes B to have sexual intercourse with A's friend, or incites him to do so, even if the incitement does not result in B engaging in sexual activity.

65.     Section 32 covers the situation where, for the purpose of obtaining sexual gratification, A engages in sexual activity in the presence of B, or in a place from which B can observe him. The offence is only committed, however, where A knows or believes that B is aware of the sexual activity or intends him to be aware of it. B might be aware of the sexual activity because he is watching it at A's behest or because A is describing what he is doing to B.

66.     Section 33 covers the situation where A, for his sexual gratification, causes B to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. "Image" is defined in section 79(4)).

Section 34: Inducement, threat or deception to procure sexual activity with a person with a mental disorder

Section 35: Causing a person with a mental disorder to engage in or to agree to engage in sexual activity by inducement, threat or deception

Section 36: Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder

Section 37: Causing a person with a mental disorder to watch a sexual act by inducement, threat or deception

67.     Like the previous set of offences, these sections are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder. However, for these offences, there is no need to prove that B is unable to refuse. Instead, the offences address the situation where A uses inducements, threats or deceptions to obtain B's agreement to the sexual activity. The definition of mental disorder is at section 79(6); the definition of sexual activity is at section 78. An inducement might be A promising B presents of anything from sweets to a holiday; a threat might be A stating that he will hurt a member of B's family; and a deception might be A stating that B will get into trouble if he does not engage in sexual activity, or persuading him that it is expected that friends should engage in sexual activity. The division of the sections according to the type of sexual activity involved is similar to that in the previous set of offences.

Section 38: Care workers: sexual activity with a person with a mental disorder

Section 39: Care workers: causing or inciting sexual activity

Section 40: Care workers: sexual activity in the presence of a person with a mental disorder

Section 41: Care workers: causing a person with a mental disorder to watch a sexual act

68.     Like the previous two sets of offences, these sections are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder. The difference here is that A and B must be in a relationship of care. There is no need to prove that B is unable to refuse. The definition of mental disorder is at section 79(6); the definition of sexual activity is at section 78. The relationships of care that are covered by these offences are set out at section 42. The offences are divided according to the different types of sexual activity involved. The division is the same as for sections 30 to 33 and what is said in the notes for those sections about the different types of sexual activity covered applies here too. The prosecution must prove, in addition to the other requirements, that the defendant knew or could reasonably have been expected to know that B had a mental disorder. Subsection (2) of each section puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of B's mental disorder, it is presumed that he did know or could reasonably have been expected to know of this.

Section 42: Care workers: interpretation

69.     This section defines a relationship of care for the purposes of sections 38 to 41. An example of a relationship covered by subsection (2) is where A is a member of staff in a care home and B is a resident there. An example of a relationship covered by subsection (3) is where A is a receptionist at the clinic that B attends every week. Subsection (4) covers any situation where A provides care, assistance or services to B in connection with B's mental disorder. An example of a relationship covered by subsection (4) is where A takes B on outings every week or treats B for his learning disability with complementary therapies in B's own home. In all cases, A must have, or be "likely to have", regular face to face contact with B. The "likely to have" limb is to cover persons who provide care to B in these situations from day one of their involvement with B.

Section 43: Sections 38 to 41: marriage exception

70.     This section provides A with a defence to the offences under sections 38 to 41 if he proves he was lawfully married to B at the time of the sexual activity and B was over 16.

Section 44: Sections 38 to 41: sexual relationships which pre-date care relationships

71.     This section provides A with a defence to the offences under sections 38 to 41 if he proves that his sexual relationship with B pre-dated his relationship of care with B. But the sexual relationship must have been lawful for this defence to apply. So if A and B had a lawful sexual relationship before B developed his mental disorder and A started caring for him, A would not commit an offence by continuing that sexual relationship.

Section 45: Indecent photographs of persons aged 16 or 17

72.     This clause redefines a "child" for the purposes of the Protection of Children Act 1978 ("the 1978 Act") as a person under 18 years, rather than under 16 years, of age. This change means the offences under that Act of taking, making, permitting to take, distributing, showing, possessing with intent to distribute, and advertising indecent photographs or pseudo-photographs of children will now also be applicable where the photographs concerned are of children of 16 or 17 years of age. The same change applies to the offence of possessing an indecent photograph or pseudo-photograph of a child at section 160 of the Criminal Justice Act 1988 (section 160(4) applies the 1978 Act definition of "child").

73.     However, the clause also creates a number of conditions which if satisfied will mean that the defendant is not guilty of an offence under section 1(1)(a), (b) or (c) of the 1978 Act (provided that the offence charged relates to a photograph and not a pseudo-photograph).

74.     The conditions in relation to an offence under section 1(1)(a) of the 1978 Act (taking or making indecent photographs) are as follows:

75.     Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that at the time of the taking or making of the photograph he and the child were married or living together as partners in an enduring family relationship (section 1A(1)).

76.     Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child consented (section 1A(4)).

77.     Thirdly, the photograph must not be one that shows a person other than the child and the defendant (section 1A(3)).

78.     If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in section 1(1)(a) of the 1978 Act. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution also prove that the child did not consent and that the defendant did not reasonably believe that the child consented (section 1A(4)).

79.     The conditions in relation to an offence under section 1(1)(b) of the 1978 Act (distributing or showing indecent photographs) are as follows;

80.     Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over, and that either at the time of distributing or showing it, or at the time of obtaining it, he and the child were married or living together as partners in an enduring family relationship (section 1A(1) and (2)).

81.     Secondly, the photograph must not be one that shows a person other than the child and the defendant (section 1A(3)).

82.     If either of these conditions is not satisfied, the prosecution need only prove the offence as set out in section 1(1)(b) of the 1978 Act. But if both the conditions are satisfied, the defendant is not guilty of the offence unless the prosecution prove that the showing or distribution was to a person other than the child (section 1A(5)).

83.     The conditions in relation to an offence under section 1(1)(c) of the 1978 Act (being in possession of indecent photographs with a view to their being distributed or shown) are as follows:

84.     Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that either at the time of his possession of it with a view to distributing or showing it, or at the time when he obtained it, he and the child were married or living together as partners in an enduring family relationship (section 1A(1) and (2)).

85.     Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented (or the defendant reasonably believed that the child consented) to the photograph's being in the defendant's possession, and also as to whether the defendant had the photograph in his possession with a view to distributing or showing it to a person other than the child (section 1A(6)).

86.     Thirdly, the photograph must not be one that shows a person other than the child and the defendant (section 1A(3)).

87.     If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in section 1(1)(c) of the 1978 Act. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution also prove either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed to a person other than the child.

88.     Similar provision is made in relation to an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of a child). The conditions are as follows:

89.     Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that at the time when he possessed the photograph, or at the time when he obtained it, he and the child were married or living together as partners in an enduring family relationship (section 160A(1) and (2)).

90.     Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented to the photograph being in his possession or as to whether the defendant reasonably believed that the child so consented (section 160A(4)).

91.     Thirdly, the photograph must not be one that shows a person other than the child and the defendant (section 160A(3)).

92.     If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in section 160 of the Criminal Justice Act 1988. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution prove that the child did not consent and that the defendant did not reasonably believe that the child consented (section 160A(4)).

Section 46: Criminal proceedings, investigations etc.

93.     This clause creates a limited defence to the offence of "making" an indecent photograph or pseudo-photograph of a child, under section 1(1)(a) of the Protection of Children Act 1978. "Making" covers, for example, the situation where a person downloads an image from the Internet or copies a computer hard drive. The defence applies where a person "making" such a photograph or pseudo-photograph can prove that it was necessary for him to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. The defence also applies to a member of the Security Service or GCHQ (Government Communications Headquarters) who can prove that it was necessary for him to "make" the photograph or pseudo-photograph for the exercise of the functions of the Security Service or GCHQ.

Section 47: Paying for sexual services of a child

94.     Section 47 makes it an offence for any person (A) intentionally to obtain for himself the sexual services of a child (B) aged under 18, where those services have been paid for or where payment has been promised. The offence covers the situation where A pays for the services or promises payment either directly to B or to a third party (C) (for example where C is B's pimp) or where A knows that another person (D) has paid for the services or promised such payment. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over) However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. Subsection (2) defines payment widely. It covers not only a payment of money but any financial advantage. This includes the discharge of an obligation to pay (for example, B owes A a debt for a car but A agrees to waive the debt if B provides him with sexual services) and the provision of goods or services gratuitously or at a discount (for example, where A provides drugs to B at no or reduced cost on condition that B provides sexual services to A).

Section 48: Causing or inciting child prostitution or pornography

95.     Section 48 makes it an offence for a person (A) intentionally to cause or incite a child under 18 (B) into prostitution or involvement in pornography anywhere in the world. The offence is aimed at persons who recruit into prostitution or pornography (whether on a one-off basis or longer term) those who are not involved or not currently involved in it. This could be where A makes a living from the prostitution of others and encourages new recruits to work for him or another (whether those recruits do actually then engage in prostitution or not). It could also cover the situation where A and B live together and A compels B to become involved in pornography, for example in order to pay their rent, or for any other reason. Unlike the prostitution offence at section 53, there is no requirement that the causing or inciting of a child prostitute must be done for gain. The prostitution or pornography can take place, or be intended to take place, in any part of the world. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. The terms "pornography" and "prostitute" are defined in section 51.

Section 49: Controlling a child prostitute or a child involved in pornography

96.     Section 49 makes it an offence for a person (A) intentionally to control any of the activities of a child (B) that relate to the child's prostitution or involvement in pornography in any part of the world. The offence is committed even if B's activities in relation to prostitution or pornography are controlled for part of the time by another person. An example of the behaviour that might be caught by this offence is where A requires or directs B to charge a certain price or to use a particular hotel for her sexual services or to pose for a certain photographer and B complies with this request or direction. The prostitution or pornography can take place in any part of the world. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any belief he may have about B's age. The terms "pornography" and "prostitution" are defined in section 51.

Section 50: Arranging or facilitating child prostitution or pornography

97.     Section 50 makes it an offence for a person (A) to arrange or facilitate the involvement of a child (B) in prostitution or pornography in any part of the world. This offence would cover for example, delivering B to a place where he will be used to make pornography or making arrangements for B's prostitution to take place in a particular room. Where B is 13 or over, the offence will not be committed where A reasonably believes that B is 18 or over. (It will be for the prosecution to prove that A does not reasonably believe that B is 18 or over). However, where B is under 13, A will commit the offence regardless of any reasonable belief he may have about B's age. The terms "pornography" and "prostitution" are defined in section 51.