Section 51: Sections 48 to 50: Interpretation

98.     Section 51 defines the terms "pornography", "prostitute" and "prostitution" as used in sections 48 to 50.

Section 52: Causing or inciting prostitution for gain

99.     Section 52 makes it an offence for a person (A) intentionally to cause or incite a person (B) into prostitution anywhere in the world where A does so for or in expectation of gain for himself or for a third party. Although this offence is not specifically limited to where B is aged 18 or over, it is aimed at cases where B is an adult, as the offence at section 48 specifically covers cases where B is under 18. Although prostitution by adults aged 18 or over is not an offence in itself, this offence is intended to cover those who, for gain, recruit others into prostitution, whether this be by the exercise of force or otherwise. The terms "prostitute" and "gain" are defined at section 54.

Section 53: Controlling prostitution for gain

100.     Section 53 makes it an offence for a person (A) intentionally to control another person's activities relating to prostitution, in any part of the world, where A does so for, or in the expectation of, gain for himself or a third party. This offence covers the same behaviour as section 49, but is limited to prostitution. Although this offence is not specifically limited to cases where the person controlled is aged 18 or over, it is aimed at those cases, as the offence at section 49 specifically covers cases where the person controlled is under 18. The terms "prostitution" and "gain" are defined at section 54.

Section 54: Sections 52 and 53: interpretation

101.     Section 54 provides definitions for the terms "gain", "prostitute" and "prostitution" as used in sections 52 and 53. Subsection (1) defines "gain" as any financial advantage, including the discharge of a debt or obligation to pay, or the provision of goods or services (including sexual services) for free, or at a discount. The reference to "sexual services" would cover someone who controls the activities of a number of women in prostitution, where the gain he derives from them is their engaging in sexual intercourse with him. It also covers the goodwill of any person likely to bring such a financial advantage. So in relation to the offence at section 52, for example, this would cover A inciting B to work as a prostitute for C, where A expects this will lead to C providing him (A) with cheap drugs at a later date. The definitions of "prostitute" and "prostitution" as used in sections 52 and 53 are those set out in section 51.

Section 55: Penalties for keeping a brothel used for prostitution

102.     Section 55 amends the Sexual Offences Act 1956 to create a new offence of keeping a brothel used for prostitution. The new offence is triable either way with a maximum penalty on indictment of 7 years imprisonment.

Section 56: Extension of gender-specific prostitution offences

103.     Section 56 introduces Schedule 1 (extension of gender-specific prostitution offences) to the Act. Schedule 1 widens the offences of "permitting the premises to be used for prostitution" (at section 35 of the Sexual Offences Act 1956), "loitering or soliciting for purposes of prostitution" and the provisions relating to cautions for this offence (at sections 1 and 2 of the Street Offences Act 1959), "kerb crawling" and "persistent soliciting of women for the purpose of prostitution" (at sections 1 and 2 of the Sexual Offences Act 1985), otherwise unchanged by this Act, to cover all people involved, irrespective of their gender.

Section 57: Trafficking into the UK for sexual exploitation

104.     Section 57 makes it an offence for a person (A) intentionally to arrange or facilitate the arrival into the UK of a person (B), where A intends to do anything that would result in the commission of a relevant offence involving B, or believes that another person is likely to do something to, or in respect of, B that would result in the commission of a relevant offence involving B. In both cases, the relevant offence must take place after B's arrival in the UK but may take place anywhere in the world. "Relevant offence" is defined at subsection (1) of section 60.

105.     This section re-enacts with amendments the offence in section 145 of the Nationality, Asylum and Immigration Act 2002.

106.     A may intend the relevant offence to be committed, or believe that it is likely to be committed, in any part of the world. This is to ensure that an offence will be committed where, for example, A traffics B into the UK as an interim destination but intends to traffic B on to another country so he can be subjected to a sexual offence there.

107.     A may intend to commit the relevant offence himself, or believe that another person will do so. So for example, it will be an offence for A to make arrangements to bring B into the UK believing that C will then, for gain, force B into prostitution in Germany (causing prostitution for gain will be a relevant offence). It is A's belief that is important, so the offence would still be committed if C never actually caused B to work as a prostitute.

108.     A will only commit the offence if he intends that B should be the victim of an offence committed by A, or believes that B will be the victim of an offence committed by C. This will ensure that airline companies, road hauliers etc who are transporting someone without any such intent or belief are not captured. The offence is intended, however, to cover A if he is part of the enterprise of trafficking for sexual exploitation even if he is one link in a chain of people helping to traffic B. Provided A has the necessary intent or belief, the section will cover, for example, his recruiting B in B's country of origin, his making arrangements for transport and food for B's journey, his forging of immigration documents for B and his other involvement in bringing B to the UK.

Section 58: Trafficking within the UK for sexual exploitation

109.     Section 58 makes it an offence for a person (A) intentionally to arrange or facilitate travel within the UK of a person (B) where A intends to do anything to, or in respect of, B that would result in the commission of a relevant offence involving B, or where he believes that another person is likely to do something to, or in respect of, B that would result in the commission of a relevant offence involving B. In both cases, the relevant offence must take place during or after the journey but may take place anywhere in the world. "Relevant offence" is defined at subsection (1) of section 60. This offence is intended to apply both to UK nationals who are moved from one place to another in the UK to be sexually exploited as well as to others, including foreign nationals, who are, for example, trafficked to London from central Europe and then moved from London to another part of the UK to be sexually exploited.

Section 59: Trafficking out of the UK for sexual exploitation

110.     Section 59 makes it an offence for a person (A) intentionally to arrange or facilitate the departure from the UK of a person (B) where A intends to do anything to, or in respect of, B that would result in the commission of a relevant offence involving B or A believes that another person is likely to do something to, or in respect of, B that would result in the commission of a relevant offence involving B. In both cases, the relevant offence must take place after B's departure and may take place anywhere in the world. "Relevant offence" is defined at subsection (1) of section 60

111.     The offence is designed to cover the situation where B is in the UK, either because he is ordinarily resident here or because he has been trafficked here, but is then trafficked by A to another part of the world to be subjected to a sex offence.

Section 60: Sections 57 to 59: interpretation and jurisdiction

112.     Section 60 gives, for the purposes of the above sections, the definition of "relevant offence". The definition includes acts done outside England and Wales and Northern Ireland which, if they had been done in either of those territories, would constitute an offence under Part 1 of the Bill or under section 1(1)(a) of the Protection of Children Act 1978 (or the equivalent offences in Northern Ireland). It is irrelevant for the purposes of this definition whether the act in question also constitutes an offence in the country in which it is carried out.

113.     The section also defines the territorial extent and jurisdiction of the above sections. The offences will cover acts committed by any person in the UK. They will also cover acts committed outside the UK by any body incorporated under UK law such as a UK company, or by any of the categories of British person listed at subsection (3) of the section when abroad, irrespective of whether or not the act in question is a criminal offence under the law in the country in which it is committed.

Section 61: Administering a substance with intent

114.     Section 61 makes it an offence for a person (A) intentionally to administer a substance or to cause any substance to be taken by another person (B) where A knows that B does not consent to taking that substance and where A intends to stupefy or overpower B so that any person can engage in sexual activity involving B.

115.     The offence is intended to cover use of so-called "date rape drugs" administered without the victim's knowledge or consent, but would also cover the use of any other substance with the relevant intention. It would cover A 'spiking' B's drinks with alcohol where B did not know he was consuming alcohol, but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew that he was consuming alcohol.

116.     The substance may be administered to B in any way, for example, in a drink (as in the example given above), by injection or by covering B's face with a cloth impregnated with the substance.

117.     The offence applies both where A himself administers the substance to B, and where A causes the substance to be taken by B, for example where A persuades a friend (C) to administer a substance to B, so that A can have sex with B, because C knows B socially and can more easily slip the substance into B's drink than A can.

118.     However, the intended sexual activity need not involve A. In the example given above it could be intended that C or any other person would have sex with B.

119.     The term "sexual", used in this section in the phrase "sexual activity", is defined in section 78. The sexual activity in this offence could involve A having sexual intercourse with or masturbating B; could involve A causing B to commit a sexual act upon himself (for example, masturbation); or could involve B and a third party engaging in sexual activity together, regardless of whether the third party had administered the substance.

120.     The offence would be made out where A administers the substance or causes B to take it (with the relevant intent) regardless of whether any sexual activity took place, for example because a friend of B saw what was happening and intervened to protect B.

Section 62: Committing an offence with intent to commit a sexual offence

121.     Section 62 makes it an offence for a person (A) intentionally to commit any criminal offence with intent to commit any relevant sexual offence as defined in subsection (2). This offence is intended to capture the situation where A commits a criminal offence but does so with the intention of committing a subsequent sexual offence, regardless of whether or not the substantive sexual offence is committed. It would apply, for example, where A kidnaps B so that he can rape him but is caught by the police before committing the rape. It would also apply where A detained B in his flat with this intention, or assaulted B to subdue him so that he could more easily rape him. If A does commit the intended offence, he could be charged with the substantive sexual offence in addition to this offence.

Section 63 Trespass with intent to commit a sexual offence

122.     Section 63 makes it an offence for A to intend to commit a "relevant sexual offence" (defined at subsection (2) of section 62) whilst he is on any premises where he is a trespasser, either knowing, or being reckless as to whether, he is trespassing. A person is a trespasser if he is on any premises without the owner's or occupier's consent, or other lawful excuse. This offence is intended to capture, for example, the situation where a person (A) enters a building owned by B, or goes into B's garden or garage without B's consent, and he intends to commit a sexual offence against the occupier. The offence applies regardless of whether or not the substantive sexual offence is committed. A will commit the offence if he has the intent to commit a relevant sexual offence at any time while he is a trespasser. The intent is likely to be inferred from what the defendant says or does to the intended victim (if there is one) or from items in possession of the defendant at the time he commits the trespass (for example, condoms, pornographic images, rope etc.). A separate offence is needed to cover trespass (as opposed to relying on section 62) because trespass is a civil tort and not a criminal offence.

Section 64: Sex with an adult relative: penetration

Section 65: Sex with an adult relative: consenting to penetration

123.     Section 64 makes it an offence for a person (A) aged 16 or over intentionally to penetrate sexually a relative (B) who is aged 18 or over if he knows or could reasonably have been expected to know that B is his relative. Section 65 makes it an offence for a person (A) aged 16 or over to consent to being penetrated sexually by a relative (B) aged 18 or over if he knows or could reasonably have been expected to know that B is his relative. For either offence to be committed the penetration must be "sexual", as defined at Section 78. This requirement ensures that penetration for some other purpose, for example where one sibling helps another to insert a pessary for medical reasons, is not caught by this offence. Subsection (2) of each section defines "relative" for the purposes of each offence.

124.     Adoptive relatives are excluded from each offence. Paragraph 47 of Schedule 6 makes a consequential amendment to the Adoption and Children Act 2002, to the effect that the provision in the 2002 Act that makes an adoptive child a child of the adoptive parents does not apply in relation to these offences. So, for example, it will not be an offence under either of these sections for an adoptive brother and sister aged over 18 to have sexual intercourse.

125.     The effect of subsection (3) of each section is 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 that B is his relative, it is presumed that he did know or could reasonably have been expected to know it.

Section 66: Exposure

126.     Section 66 makes it an offence for a person intentionally to expose his genitals where he intends that someone will see them and be caused alarm or distress. It is not necessary for A's genitals to have been seen by anyone or for anyone to have been alarmed or distressed. For example, if a person exposes his genitals to some passers-by, he may (depending on his state of mind) commit the offence regardless of whether they actually see his genitals or whether they have been alarmed or distressed by seeing them.

Section 67: Voyeurism

127.     Section 67 makes it an offence, under subsection (1) for a person, (A), to observe, for the purpose of his own sexual gratification, another person doing a private act, for instance by looking through a window or peephole at someone having sexual intercourse, where A knows the person observed does not consent to being looked at for this purpose.

128.     Subsection (2) covers a person (A) operating equipment with the intention of enabling another person, for his sexual gratification, to observe a third person (B), doing a private act, where A knows that B does not consent to being so viewed. This would cover, for example, a landlord (A) operating a webcam to allow people on the internet for their sexual gratification to view live images of his tenant (B) getting undressed, if A knew that B did not consent to this.

129.     Subsection (3) covers a person (A) recording another person (B) doing a private act with the intention of looking at the recording for his own sexual gratification, or intending other people to look, for their sexual gratification, at the recording, and where he knows that B does not consent to the recording of that act with that intention. This would therefore cover the person (A) who secretly films someone (B) masturbating in B's bedroom to show to others for their sexual gratification. Proof that the intention was the sexual gratification of others could be derived from, for example, the fact that the image was posted on a pornographic website, or in a pornographic magazine. A will be caught by the offence whether or not those looking at the image know that the person filmed did not consent to being filmed with that intention.

130.     Subsection (4) would cover someone who, for example, drilled a spy-hole or installed a two-way mirror in a house with the intention of spying on someone for sexual gratification or allowing others to do so. A would be caught even if the peephole or mirror was discovered before it was used.

Section 68: Voyeurism: interpretation

131.     Section 68 defines "private act", and "structure" for the purposes of section 67.

Section 69: Intercourse with an animal

132.     Section 69 makes it an offence for a man intentionally to penetrate the vagina or anus of a living animal with his penis where he knows or is reckless as to whether that is what he is penetrating. The reference to vagina or anus in this context is further explained at subsection (8) of section 79. Subsection (2) of section 69 makes it an offence for a person intentionally to cause or allow her vagina or his or her anus to be penetrated by the penis of a living animal where he or she knows or is reckless as to whether that is what is doing the penetrating. This offence is related solely to penile penetration in relation to animals and does not replace existing legislation covering cruelty to animals.

Section 70: Sexual penetration of a corpse

133.     Section 70 makes it an offence for a person (A) intentionally to penetrate any part of the body of a dead person (B) with his penis, any other body part (for example his finger), or any other object, where that penetration is sexual. The offence is committed when A knows or is reckless as to whether he is penetrating any part of a dead body. This is intended to cover when A knows he is penetrating a dead body, for example in a mortuary, or where A is reckless as to whether B is alive or dead. It will not cover situations where A penetrates B fully believing B to be alive, but in fact B is dead, or where B unexpectedly dies during intercourse. The penetration must be sexual. A definition of sexual is given in section 78. This is to exclude legitimate penetration of corpses, for example that which occurs during an autopsy.

Section 71: Sexual activity in a public lavatory

134.     Section 71 makes it an offence intentionally to engage in sexual activities in a public lavatory. Subsection (1)(a) defines a public lavatory. The term "sexual" for the purposes of this clause is defined in subsection (2). A definition distinct from that in section 78 is used in section 71 so as to include only sexual activities that a reasonable person would take to be sexual without knowledge of the purpose of the person carrying out the activity.

Section 72: Offences outside the United Kingdom

135.     Subsection (1) of section 72 makes it an offence in England and Wales and Northern Ireland for a British citizen or UK resident (subject to subsection (2)) to commit certain acts overseas against a child under 16 (or, in Northern Ireland, under 17). The date referred to in subsection (2) is the commencement date of Part 2 of the Sex Offenders Act 1997, which this section re-enacts. The act done must amount to a sexual offence listed in Schedule 2 and must also amount to an offence in the country where it was committed. The exact description of the offence does not need to be the same in both countries. For example, the provisions could apply to someone who raped a child in another country although that offence was described differently under the law in that country. Subsection (4) provides that the defendant can require the prosecution to prove that what was done was an overseas offence.

Section 73: Exceptions to aiding, abetting or counselling

136.     Section 73 provides that, in certain defined circumstances, a person is not guilty of aiding, abetting or counselling a sexual offence under sections 5, 6 and 7 (offences against children under 13), section 9 (sexual activity with a child), section 13 (where the offence would be an offence under section 9 if the offender were over 18) and sections 16, 25, 30, 34 and 38 (where the victim is a child under 16).

137.     The exception applies where the person is acting for the purpose of protecting a child from pregnancy or sexually transmitted infection, for the purpose of protecting the physical safety of a child, or for the purpose of promoting a child's emotional well-being. In this last case, however, the exception only applies where the person provides advice.

138.     In all cases, the person must not be causing or encouraging the commission of an offence or a child's participation in it. Nor must the person be acting for the purpose of obtaining sexual gratification. So a person who was providing advice to a child under 16 about sexual health or contraception, in order to protect the child from becoming pregnant would not fall within the exception if he was at the same time meaning to encourage the child to have sex or was giving that advice in order to get sexual gratification for himself.

Section 74: "Consent"

139.     Section 74 defines "consent" for the purposes of this Part. This definition is relevant to many sections in the Part including, for example, the offence of rape (section 1). The section refers to a person's capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder.

Section 75: Evidential presumptions about consent

140.     This section applies to the offences of rape (section 1), assault by penetration (section 2), sexual assault (section 3) and causing a person to engage in sexual activity without consent (section 4). The section provides for presumptions that may be challenged by the defendant. The presumptions arise in the circumstances described in subsection (2). The difference between paragraphs (a) and (b) of subsection (2) is that paragraph (a) covers violence and threats of violence used against the complainant whereas paragraph (b) covers violence and threats of violence used against a person other than the complainant. The violence or threat must occur either at the time of the relevant act or immediately before it began.

141.     The effect of subsection (3) is that where, for example, the relevant act for which the person is being prosecuted is penetration, but the penetration is the culmination of a series of sexual activities, then if the violence or threat occurred immediately before the first sexual activity (as opposed to before the penetration), the presumptions still arise.

142.     Where the prosecution proves that the defendant did a relevant act (as defined in section 77), that the circumstances described in subsection (2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented. In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. In practice (although this is not mentioned in the Act) the evidence produced may be from evidence that the defendant himself gives in the witness box, or from evidence given on his behalf by a defence witness, or resulting from evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, he will so direct; if not, he will direct the jury to find the defendant guilty.

Section 76: Conclusive presumptions about consent

143.     This section creates conclusive presumptions about lack of consent and the absence of belief in consent in situations where the defendant deceived the complainant into sexual activity. Subsection (2)(a) covers the situation where, for example, the defendant intentionally tells the complainant that digital penetration of her vagina is necessary for medical reasons when in fact it is for his sexual gratification. Subsection (2)(b) covers the situation where, for example, the defendant impersonates the complainant's partner and thereby causes the complainant to consent to the relevant act. Where the prosecution prove that the defendant did a relevant act (as defined in section 77) and that any of the circumstances described in subsection (2) existed, it is conclusively presumed that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act. The defendant will therefore be convicted.

Section 77: Sections 75 and 76: relevant acts

144.     Section 77 defines the relevant acts to which the provisions in sections 75 and 76 apply.

Section 78: "Sexual"

145.     Section 78 defines "sexual" for the purposes of this Part. This definition is relevant to many of the offences under this Part. For example, section 2(1)(b) refers to penetration which is sexual and section 3(1)(b) refers to touching which is sexual.

146.     There are two alternative limbs to the definition of "sexual" in section 78. Paragraph (a) covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse. Paragraph (b) covers activity that the reasonable person would consider, because of its nature, may or may not be sexual depending on the circumstances or the intentions of the person carrying it out, or both: for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason. Where the activity is, for example, oral sex, it seems likely that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (eg a doctor's surgery) and the purpose of any of the participants (if the doctor's purpose is medical, the activity will not be sexual; if the doctor's purpose is sexual, the activity also is likely to be sexual).

147.     If, from looking at the nature of the activity, it would not appear to the reasonable person that the activity might be sexual, the activity does not meet the test in either paragraph (a) or (b), even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes do not fall within the definition of sexual activity.