© Crown Copyright 2008

Explanatory Memorandum to Northern Ireland Orders in Council are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of the Explanatory Memorandum does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Memorandum which are issued or made available to the public. This includes reproduction of the Memorandum on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this internet version of the Explanatory Memorandum which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as The Draft Sexual Offences (Northern Ireland) Order 2008 , ISBN 9780337973666 . The print version may be purchased by clicking here. Braille copies of the Explanatory Memorandum can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

EXPLANATORY MEMORANDUM TO

THE DRAFT SEXUAL OFFENCES (NORTHERN IRELAND) ORDER 2008

2008 No. [XXXX]

1.     Introduction

1.1     This explanatory memorandum has been prepared by the Northern Ireland Office and is laid before Parliament by Command of Her Majesty.

2.      Description

     2.1     This draft Sexual Offences (Northern Ireland) Order 2008 seeks to consolidate sexual offences law in Northern Ireland into one statute and modernize, strengthen and harmonise the body of offences and penalties with the rest of the United Kingdom.

3.     Matters of special interest to the Joint Committee on Statutory Instruments

     3.1      None

4.     Legislative Background

     4.1     This draft Order is being made by Order in Council procedure under Section 85 of the Northern Ireland Act 1998 and is subject to affirmative resolution. As required by the Act, the draft Order is being laid along with a statement of the representations made during consultation, a report on the draft proposal by the Northern Ireland Assembly, and a statement containing details of changes made after consultation.

4.2     The provisions in the Order place the law on sexual offences in Northern Ireland on a par with Part 1 of the Sexual Offences Act 2003 and anticipates changes to the offences of grooming, sex with an adult relative, and offences committed outside the United Kingdom proposed in the Criminal Justice and Immigration Bill currently before Parliament.

4.3     The draft Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 amends a number of UK Acts of Parliament as a consequence of the draft Sexual Offences (Northern Ireland) Order 2008.

5.     Territorial Extent and Application

     5.1     This instrument applies to Northern Ireland.

6.     European Convention on Human Rights

     6.1     The Minister, Paul Goggins has made the following statement regarding human rights:

"In my view the provisions of the draft Sexual Offences (Northern Ireland) Order 2008 are compatible with the Convention rights."

7.     Policy background

     7.1     The provisions in the draft Order are the result of the first fundamental review of the law on sexual offences in Northern Ireland. The review of the law on sexual offences was motivated by a desire to achieve a strengthened, modernised and harmonised body of law, based on the Sexual Offences Act 2003, and sought views on how the law should distinguish, for the 21^st century, between acceptable sexual behaviour and criminal activity, and suggested appropriate penalties for behaviour in the criminal category. No previous review of this body of law had ever been undertaken in Northern Ireland. Consequently, many of the statutes currently used date from the 19^th century and are disparate and often difficult to apply to current circumstances. The review was informed by a similar review of the law on sex offences carried out in England and Wales by the Home Office which preceded the Sexual Offences Act 2003 and adopted the position that unless there was good reason and sufficient justification, the law here should, as far as possible, match that in England and Wales.

     7.2     The draft Order therefore not only presents an opportunity to consolidate sexual offences law in Northern Ireland into one statute, but also provides a unique opportunity to modernize, strengthen and harmonise the body of offences and penalties with the rest of the United Kingdom.

     7.3     All current sexual offences which apply in Northern Ireland, including the provisions in the Sexual Offences Act 2003 which currently extend to Northern Ireland, will be superceded by the offences in the draft Order, with the exception of the trafficking offences which remain in Sections 57 - 60 of the Sexual Offences Act 2003.

Consultation

7.4     A proposal for a draft Order was prepared; referred to the Northern Ireland Assembly under Section 85(4) of the Northern Ireland Act 1998; and put out to public consultation on 20 November 2007. The consultation period formally ended on 5 February 2008. A total of 369 responses were received on the draft Order. This included responses from 29 organisations, political parties and elected representatives, in addition to a response in the form of a report from the Northern Ireland Assembly. However, a majority of responses received (340) were from individuals responding in a personal capacity and opposing the reduction in the so called 'age of consent' from 17 to 16 years of age.

7.5     The Assembly report considered that in general terms the sweep of the proposed legislation was sound and that it was the right approach to take, with the exception of the 'age of consent' issue.

7.6     A number of provisions were changed in light of the representations made and further policy consideration during the consultation period. These are detailed in a statement being laid before Parliament with the draft Order, a copy of the Assembly's report and a statement containing a summary of representations.

Guidance

7.7     Guidance on the offences set out in the draft Order will be prepared and consulted on before the legislation is commenced.

Overview of the proposals

7.8     The draft Sexual Offences (Northern Ireland) Order 2008 is divided into seven parts. After an Introductory Part, the Order deals with: sexual offences which are offences because consent is absent, e.g. rape and assault; sexual offences against children; sexual offences against persons with a mental disorder; prostitution; and miscellaneous sexual offences. These are followed by three Schedules dealing with: minor and consequential amendments; transitional provisions and savings; and repeals.

7.9     Part 1 is introductory dealing with commencement and interpretation. Part 2 covers the non-consensual offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. A new definition for the offence of rape includes penetration of the mouth by the penis, together with new offences of assault by penetration with a body part (other than the penis) or anything else and sexual assault, and causing a person to engage in sexual activity without consent. Part 2 also provides for new evidential and conclusive presumptions about consent, where consent is deemed to be absent unless evidence provided to the contrary, or, in some circumstances, conclusively deemed to be absent (e.g. if deception used or impersonation).

7.10     Part 3 provides a range of sex offences against a child under 16 to make it as easy as possible for any unacceptable behaviour to be prosecuted successfully. It also allows the main non-consensual offences of rape and assault to be used in cases involving children under 13 without any issue of consent being raised, e.g., if someone has sexual intercourse with a child under 13 the offence is automatically rape. It also provides that a child under 13 does not, under any circumstances, have any capacity to consent to any form of sexual activity.

7.11     Also included are provisions relating to offences where an adult is in a position of trust with a child. These offences cover all children under 18, however it is principally designed to protect young people aged 16 and 17 who, even though they are over the age of consent for sexual activity, are considered to be vulnerable to sexual abuse and exploitation from those who hold a position of trust or authority in relation to them.

7.12     Positions of trust include, for example, those employed in a residential home or detention centre or in an educational establishment.

7.13     There are provisions to cover sexual offences committed against children by family members and 'extended family' members, which reflects the modern nature of the family in society and aims to ensure that this area of sexual abuse against children, by far the most common circumstances where offending against children is found, is capable of returning a high rate of prosecutions.

7.14     The 'core family relationships' covered are: parent, grandparent, brother, sister, half-brother, half -sister, aunt, uncle, the same adoptive relationships, foster parent.

7.15     The second category of 'other family members' must have shared living accommodation or been in regular care of the child to be covered by the offence. They are: step-parent, cousins, step-siblings, foster siblings.

7.16     The third category is 'other persons' who live in the same household and who regularly care for the child. They include live-in partners.

7.17     Provision is also made for a set of offences specifically dealing with the exploitation of children through prostitution and pornography, including paying for the sexual services of a child, which provide protection for all children up to the age of 18.

7.18     The Protection of Children (Northern Ireland) Order 1978 and the Criminal Justice (Evidence, etc) (Northern Ireland) Order 1988 are amended so that offences relating to indecent photographs of children will now also be applicable where the photographs concerned are of children of 16 or 17 years of age. It also creates a number of conditions which if satisfied will mean that the defendant is not guilty of an offence, for example, if they are married to the person, or in an established relationship.

7.19     Part 4 covers offences designed to give protection to persons with a mental disorder. The offences cover situations where the victim is unable to agree to sexual activity because of a mental disorder which impedes their capacity to make an informed choice, or where it might appear that the victim had agreed to the sexual activity but because of a mental disorder which makes them vulnerable to inducements, threats or deceptions, or because they are in a relationship of care, their consent was not or could not be deemed to have been freely given.

7.20     Part 5 of the proposed Order covers offences relating to prostitution, including new offences to deal with the problem of loitering or persistent soliciting and kerb crawling. All offences relating to prostitution are drafted in gender-neutral terms.

7.21     Part 6 provides for preparatory offences, such as administering a substance with intent to commit a sexual offence, committing an offence with intent to commit a sexual offence and trespass with intent to commit a sexual offence. These offences offer protection in circumstances where the essence of the crime was of a sexual nature, rather than being the initial criminal offence itself. The common thread throughout these offences is that they apply regardless of whether the actual intended sexual act occurs.

7.22     It is also an offence for a person aged 16 or over intentionally to penetrate sexually a close relative who is aged 18 or over if he knows or could reasonably have been expected to know that it is his close relative. It is also an offence for a person aged 16 or over to consent to being penetrated sexually by a close relative aged 18 or over if he knows, or could reasonably have been expected to know, that it is his close relative.

7.23     This Part also covers miscellaneous sexual offences ranging from exposure and voyeurism to sexual penetration of a corpse. Also included is the offence of sexual activity in a public lavatory.

7.24     Part 7 provides that if an offence has been committed against someone under 16 outside of Northern Ireland, which would constitute an offence if done here, then the courts here can prosecute the offender if he resides in Northern Ireland. Part 7 also provides exceptions to aiding, abetting and counselling the commission against a child of an offence; amendment to the Sexual Offences Act 2003 and the Criminal Law Act (Northern Ireland) 1967; defines order or rule making powers by the Secretary of State; and details other minor and consequential amendments and repeals.

The Provisions

Part 1 - Introductory

Article 2: Interpretation

7.25     Article 2 gives a number of definitions relevant to offences in the Order. Paragraph (5) is needed so that where, for example, a person consents at the time of entry to penetration, but then withdraws his consent and the penetration continues, the person penetrating may be guilty of rape or assault by penetration.

Article 3: "Consent"

7.26     Article 3 defines "consent" for the purposes of this Order. This definition is relevant to many Articles in the Order including, for example, the offence of rape (Article 5). The Article 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.

Article 4: "Sexual"

7.27     Article 4 defines "sexual" for the purposes of this Order. This definition is relevant to many of the offences in the Order. For example, Article 6(1)(b) refers to penetration which is sexual and Article 7(1)(b) refers to touching which is sexual.

7.28     There are two alternative limbs to the definition of "sexual" in Article 4. Sub-paragraph (a) covers activity that the reasonable person would always consider to be sexual because of its nature, such as sexual intercourse. Sub-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 (e.g. 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).

7.29     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 sub-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.

Part 2 - Non-consensual sexual offences

Rape

Article 5: Rape

7.30     Article 5 makes it an offence for a person (A) intentionally to penetrate with his penis the vagina, anus or mouth of another person (B) without that person's consent if A does not reasonably believe that B consents. Paragraph (2) provides that whether a belief in consent is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. This and the offence in Article 12 are the only offences that can only be committed by a male, because they relate to penile penetration. Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent. The Article also abolishes the common law offence of rape.

Assault

Article 6: Assault by penetration

7.31     Article 6 covers the situation where a person (A) intentionally penetrates the vagina or anus of another person (B). The offence is committed where the penetration is by a part of A's body (for example, a finger) or anything else, (for example, a bottle); where the penetration is sexual (as defined in Article 4, so that it excludes, for example, intimate searches and medical procedures; where B does not consent to the penetration; and where A does not reasonably believe that B consents. What is said in the note to Article 5 about whether a belief in consent is reasonable also applies here. This and all subsequent offences in the Order save the offence at Article 12 can be committed by a male or female, against a male or female. Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent.

Article 7: Sexual assault

7.32     Article 7 makes it an offence for a person (A) intentionally to touch sexually another person (B) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to Article 5 about whether a belief in consent is reasonable also applies here. The meaning of "touching" is explained at Article 2(11); "sexual" is defined at Article 4. The effect of these sections is that the offence covers a wide range of behaviour including, for example, rubbing up against someone's private parts through the person's clothes for sexual gratification. Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent.

Causing sexual activity without consent

Article 8: Causing a person to engage in sexual activity without consent

7.33     Article 8 makes it an offence for a person (A) intentionally to cause another person (B) to engage in sexual activity (as defined in Article 4) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to Article 5 about whether a belief in consent is reasonable also applies here. A may cause B to engage in sexual activity with A (for example, a woman who compels a man to penetrate her); on B himself (for example, where one person forces someone else to masturbate himself); or with another person (for example, where one person makes someone else masturbate a third person). Paragraph (3) provides that Articles 9 and 10 apply to this offence. Articles 9 and 10 deal with evidential and conclusive presumptions about consent.

Article 9: Evidential presumptions about consent

7.34     This Article applies to the offences of rape (Article 5), assault by penetration (Article 6), sexual assault (Article 7) and causing a person to engage in sexual activity without consent (Article 8). The Article provides for presumptions that may be challenged by the defendant. The presumptions arise in the circumstances described in paragraph (2). The difference between paragraphs (a) and (b) of paragraph (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.

7.35     The effect of paragraph (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.

7.36     Where the prosecution proves that the defendant did a relevant act (as defined in Article 11), that the circumstances described in paragraph (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 Order) 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.

Article 10: Conclusive presumptions about consent

7.37     This Article 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. Paragraph (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. Paragraph (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 Article 11) and that any of the circumstances described in paragraph (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.

Article 11: Articles 9 and 10: relevant acts

7.38     Article 11 defines the relevant acts to which the provisions in Articles 9 and 10 apply.

Part 3 - Sexual offences against children

Rape and other offences against children under 13

Article 12: Rape of a child under 13

7.39     Article 12 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under the age of 13. Whether or not the child consented to this act is irrelevant.

Assault

Article 13: Assault of a child under 13 by penetration

7.40     Article 13 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under the age of 13 with a part of his body, such as a finger, or with anything else, such as bottle or other object. The penetration must be sexual, as defined in Article 4. Whether or not the child consented to the act is irrelevant.

Article 14: Sexual assault of a child under 13

7.41     Article 14 makes it an offence for a person to touch sexually a child under the age of 13. The meanings of "touching" and "sexual" are the same as for Article 7. Whether or not the child consented to the act is irrelevant.

Article 15: Causing or inciting a child under 13 to engage in sexual activity

7.42     Article 15 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity. In relation to caused sexual activity, the offence covers the same situations as does the offence under Article 8 except that, for this offence, whether or not the child consented to engaging in the sexual activity is irrelevant. This article also covers the situation where incitement takes place but the sexual activity itself does not. For example, a person may incite a child to engage in sexual activity with him (for example, where a person incites the child to masturbate him), or on the child himself (for example, where a person incites the child to strip) or with a third person (for example, where someone incites the child to have sexual intercourse with his friend).

Sexual offences against children under 16

Article 16: Sexual activity with a child

7.43     Article 16 makes it an offence for a person (A) aged 18 or over to intentionally engage in sexual touching of a child under 16. Where the child is aged 13 or over but under 16, the prosecution must prove that A did not reasonably believe that he was 16 or over. "Touching" is explained at Article 2(11) and covers all forms of physical contact including penetration; "sexual" is defined at Article 4. Whether or not the child consented to the activity is irrelevant.

Article 17: Causing or inciting a child to engage in sexual activity

7.44     Article 17 makes it an offence for a person (A) aged 18 or over, intentionally to cause or incite a child aged under 16 to engage in sexual activity (as defined at Article 4). Where the child is aged 13 or over, but under 16, the prosecution must prove that A did not reasonably believe that he was 16 or over. The sexual activity which is caused or incited may be activity with A (for example, where A causes or incites the child to have sexual intercourse with him), on the child himself (for example, where A causes or incites the child to strip for A's sexual gratification) or with a third person (for example, where A causes or incites the child to have sexual intercourse with A's friend). The incitement constitutes an offence whether or not the activity incited actually takes place. Whether or not the child consented to the activity caused or incited, or to the incitement, is irrelevant.