Draft Order in Council laid before Parliament under section 85 of the Northern Ireland Act 1998, for approval by resolution of each House of Parliament.
Draft Statutory Instruments
NORTHERN IRELAND
Made
2008
Coming into operation in accordance with Article 1(2) and (3)
SEXUAL OFFENCES AGAINST CHILDREN
Offences against children under 18: abuse of position of trust
23. Abuse of position of trust: sexual activity with a child
24. Abuse of position of trust: causing or inciting a child to engage in sexual activity
25. Abuse of position of trust: sexual activity in the presence of a child
26. Abuse of position of trust: causing a child to watch a sexual act
27. Abuse of position of trust: acts done in England and Wales or Scotland
30. Articles 23 to 26: exception for spouses and civil partners
31. Articles 23 to 26: sexual relationships which pre-date position of trust
Abuse of children under 18 through prostitution and pornography
SEXUAL OFFENCES AGAINST A PERSON WITH A MENTAL DISORDER
Offences against persons with a mental disorder impeding choice
43. Sexual activity with a person with a mental disorder impeding choice
44. Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity
45. Engaging in sexual activity in the presence of a person with a mental disorder impeding choice
46. Causing a person, with a mental disorder impeding choice, to watch a sexual act
Inducements etc. to persons with a mental disorder
47. Inducement, threat or deception to procure sexual activity with a person with a mental disorder
48. Causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception
49. Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder
50. Causing a person with a mental disorder to watch a sexual act by inducement, threat or deception
Care workers for persons with a mental disorder
51. Care workers: sexual activity with a person with a mental disorder
53. Care workers: sexual activity in the presence of a person with a mental disorder
54. Care workers: causing a person with a mental disorder to watch a sexual act
56. Articles 51 to 54: exception for spouses and civil partners
57. Articles 51 to 54: sexual relationships which pre-date care relationships
58. Interpretation of this Part
59. Loitering or soliciting for purposes of prostitution
60. Kerb-crawling
61. Persistent soliciting
Exploitation of prostitution
62. Causing or inciting prostitution for gain
63. Controlling prostitution for gain
64. Keeping a brothel used for prostitution
SCHEDULES
At the Court at Buckingham Palace, the ** day of ** 2008
Present,
The Queen’s Most Excellent Majesty in Council
Whereas—
(a) the Secretary of State, in accordance with subsection (4)(a) of section 85 of the Northern Ireland Act 1998 (c. 47), laid before Parliament a document which contained a draft of this proposed Order;
(b) the Secretary of State referred the document to the Northern Ireland Assembly for its consideration;
(c) the period referred to in subsection (4)(c) of that section has ended; and
(d) a draft of this Order has been approved by resolution of each House of Parliament:
Now therefore, Her Majesty, in exercise of the powers conferred by section 85 of the Northern Ireland Act 1998, and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—
1.—(1) This Order may be cited as the Sexual Offences (Northern Ireland) Order 2008.
(2) The following provisions of this Order come into operation one week after the day on which this Order is made—
(a) this Part;
(b) Article 80;
(c) Article 82.
(3) The other provisions of this Order come into operation on such day or days as the Secretary of State may by order appoint.
2.—(1) The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
(2) The following provisions of this Article apply for the purposes of this Order.
(3) “Statutory provision” must be construed in accordance with section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33).
(4) “The 1995 Order” means the Children (Northern Ireland) Order 1995 (NI 2).
(5) Penetration is a continuing act from entry to withdrawal.
(6) References to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery).
(7) “Image” means a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image.
(8) References to an image of a person include references to an image of an imaginary person.
(9) “Mental disorder” has the meaning given by Article 3 of the Mental Health (Northern Ireland) Order 1986 (NI 4).
(10) References to observation (however expressed) are to observation whether direct or by looking at an image.
(11) Touching includes touching—
(a) with any part of the body,
(b) with anything else,
(c) through anything,
and in particular includes touching amounting to penetration.
(12) “Vagina” includes vulva.
(13) In relation to an animal, references to the vagina or anus include references to any similar part.
3. For the purposes of this Order, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
4. For the purposes of this Order, except Article (sexual activity in a public lavatory), penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both), it is sexual.
5.—(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Articles 9 and 10 apply to an offence under this Article.
(4) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life.
(5) Any reference to rape in a statutory provision shall be construed in accordance with paragraph (1).
(6) The common law offence of rape is abolished.
6.—(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Articles 9 and 10 apply to an offence under this Article.
(4) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life.
7.—(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Articles 9 and 10 apply to an offence under this Article.
(4) A person guilty of an offence under this Article is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
8.—(1) A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Articles 9 and 10 apply to an offence under this Article.
(4) A person guilty of an offence under this Article, if the activity caused involved—
(a) penetration of B’s anus or vagina,
(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,
is liable, on conviction on indictment, to imprisonment for life.
(5) Unless paragraph (4) applies, a person guilty of an offence under this Article is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
9.—(1) If in proceedings for an offence to which this Article applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in paragraph (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2) The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
(3) In paragraph (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
10.—(1) If in proceedings for an offence to which this Article applies it is proved that the defendant did the relevant act and that any of the circumstances specified in paragraph (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are—
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
11. In relation to an offence to which Articles 9 and apply, references in those Articles to the relevant act and to the complainant are to be read as follows—
| Offence | Relevant Act |
|---|---|
| An offence under Article (rape) | The defendant intentionally penetrating, with his penis, the vagina, anus or mouth of another person (“the complainant”). |
| An offence under Article 6 (assault by penetration) | The defendant intentionally penetrating, with a part of his body or anything else, the vagina or anus of another person (“the complainant”), where the penetration is sexual. |
| An offence under Article 7 (sexual assault) | The defendant intentionally touching another person (“the complainant”), where the touching is sexual. |
| An offence under Article 8 (causing a person to engage in sexual activity without consent) | The defendant intentionally causing another person (“the complainant”) to engage in an activity, where the activity is sexual. |
12.—(1) A person commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.
(2) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life.
13.—(1) A person commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person with a part of his body or anything else,
(b) the penetration is sexual, and
(c) the other person is under 13.
(2) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life.
14.—(1) A person commits an offence if—
(a) he intentionally touches another person,
(b) the touching is sexual, and
(c) the other person is under 13.
(2) A person guilty of an offence under this Article 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 14 years.
15.—(1) A person commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
(c) B is under 13.
(2) A person guilty of an offence under this Article, if the activity caused or incited involved—
(a) penetration of B’s anus or vagina,
(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,
is liable, on conviction on indictment, to imprisonment for life.
(3) Unless paragraph (2) applies, a person guilty of an offence under this Article 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 14 years.
16.—(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual, and
(c) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
(2) A person guilty of an offence under this Article, 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,
(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,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(3) Unless paragraph (2) applies, a person guilty of an offence under this Article 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 14 years.
17.—(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
(c) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
(2) A person guilty of an offence under this Article, if the activity caused or incited involved—
(a) penetration of B’s anus or vagina,
(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,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(3) Unless paragraph (2) applies, a person guilty of an offence under this Article 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 14 years.
18.—(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally engages in an activity,
(b) the activity is sexual,
(c) for the purpose of obtaining sexual gratification, he engages in it—
(i) when another person (B) is present or is in a place from which A can be observed, and
(ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and
(d) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
(2) A person guilty of an offence under this Article is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
19.—(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(b) the activity is sexual, and
(c) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
(2) A person guilty of an offence under this Article is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
20.—(1) A person under 18 commits an offence if he does anything which would be an offence under any of Articles 16 to 19 if he were aged 18.
(2) A person guilty of an offence under this Article 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.
21.—(1) A person commits an offence if—
(a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and
(b) doing it will involve the commission of an offence under any of Articles to 20.
(2) A person does not commit an offence under this Article if—
(a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another to do, and
(b) any offence within paragraph (1)(b) would be an offence against a child for whose protection he acts.
(3) For the purposes of paragraph (2), a person acts for the protection of a child if he acts for the purpose of—
(a) protecting the child from sexually transmitted infection,
(b) protecting the physical safety of the child,
(c) preventing the child from becoming pregnant, or
(d) promoting the child’s emotional well-being by the giving of advice,
and not for the purpose of obtaining sexual gratification or for the purpose of causing or encouraging the activity constituting the offence within paragraph (1)(b) or the child’s participation in it.
(4) A person guilty of an offence under this Article 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 14 years.
22.—(1) A person aged 18 or over (A) commits an offence if—
(a) A has met or communicated with another person (B) on at least two occasions, and subsequently—
(i) A intentionally meets B, or
(ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
(iii) B travels with the intention of meeting A in any part of the world,
(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in sub-paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,
(c) B is under 16, and
(d) A does not reasonably believe that B is 16 or over.
(2) In paragraph (1)—
(a) the reference to A having met or communicated with B is a reference to A having met B in any part of the world or having communicated with B by any means from, to or in any part of the world;
(b) “relevant offence” means—
(i) an offence under this Order, or
(ii) an offence under any of sections 57 to 59 of the Sexual Offences Act 2003 (c. 42), or
(iii) anything done outside Northern Ireland which is not an offence under paragraph (i) or (ii) but would be an offence within paragraph (i) or (ii) if done in Northern Ireland.
(3) A person guilty of an offence under this Article is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
23.—(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) A is in a position of trust in relation to B,
(d) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(e) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(2) This paragraph applies where A—
(a) is in a position of trust in relation to B by virtue of circumstances within Article 28(2), (3), (4) or (5), and
(b) is not in such a position of trust by virtue of other circumstances.
(3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(4) Where in proceedings for an offence under this Article—
(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), (4) or (5), and
(b) it is not proved that he was in such a position of trust by virtue of other circumstances,
it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances.
(5) A person guilty of an offence under this Article 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.
24.—(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual,
(c) A is in a position of trust in relation to B,
(d) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(e) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(2) This paragraph applies where A—
(a) is in a position of trust in relation to B by virtue of circumstances within Article 28(2), (3), or (5), and
(b) is not in such a position of trust by virtue of other circumstances.
(3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(4) Where in proceedings for an offence under this Article—
(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), (4) or (5), and
(b) it is not proved that he was in such a position of trust by virtue of other circumstances,
it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances.
(5) A person guilty of an offence under this Article 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.
25.—(1) A person aged 18 or over (A) commits an offence if—
(a) he intentionally engages in an activity,
(b) the activity is sexual,
(c) for the purpose of obtaining sexual gratification, he engages in it—
(i) when another person (B) is present or is in a place from which A can be observed, and
(ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d) A is in a position of trust in relation to B,
(e) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(f) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(2) This paragraph applies where A—
(a) is in a position of trust in relation to B by virtue of circumstances within Article 28(2), (3), (4) or (5), and
(b) is not in such a position of trust by virtue of other circumstances.
(3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(4) Where in proceedings for an offence under this Article—
(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), (4) or (5), and
(b) it is not proved that he was in such a position of trust by virtue of other circumstances,
it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances.
(5) A person guilty of an offence under this Article 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.
26.—(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity or to look at an image of any person engaging in an activity,
(b) the activity is sexual,
(c) A is in a position of trust in relation to B,
(d) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(e) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(2) This paragraph applies where A—
(a) is in a position of trust in relation to B by virtue of circumstances within Article 28(2), (3), (4) or (5), and
(b) is not in such a position of trust by virtue of other circumstances.
(3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(4) Where in proceedings for an offence under this Article—
(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), or (5), and
(b) it is not proved that he was in such a position of trust by virtue of other circumstances,
it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances.
(5) A person guilty of an offence under this Article 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.
27. Anything which, if done in Northern Ireland, would constitute an offence under any of Articles 23 to 26 also constitutes that offence if done in England and Wales or Scotland.
28.—(1) For the purposes of Articles to 26 a person (A) is in a position of trust in relation to another person (B) if—
(a) any of the following paragraphs applies, or
(b) any condition specified in an order made by the Secretary of State is met.
(2) This paragraph applies if A looks after persons under 18 who are detained in an institution by virtue of a court order or under a statutory provision, and B is so detained in that institution.
(3) This paragraph applies if A looks after persons under 18 who are resident in a home or other place in which—
(a) accommodation and maintenance are provided by an authority under Article 27(2) of the 1995 Order, or
(b) accommodation is provided by a voluntary organisation under Article 75(1) of that Order,
and B is resident, and is so provided with accommodation and maintenance or accommodation, in that place.
(4) This paragraph applies if A looks after persons under 18 who are accommodated and cared for in one of the following institutions—
(a) a hospital,
(b) an independent clinic,
(c) a residential care home or private hospital,
(d) a voluntary home or children’s home, or
(e) a residential family centre,
and B is accommodated and cared for in that institution.
(5) This paragraph applies if A looks after persons under 18 who are receiving education at an educational institution and B is receiving, and A is not receiving, education at that institution.
(6) This paragraph applies if A is appointed to be the guardian of B under Article 159 or 160 of the 1995 Order.
(7) This paragraph applies if A regularly has unsupervised contact with B (whether face to face or by any other means) in the exercise of functions of an authority under Article 21 or 23 of the 1995 Order.
(8) This paragraph applies if A, as a person who is to report to the court under Article 4 of the 1995 Order on matters relating to the welfare of B, regularly has unsupervised contact with B (whether face to face or by any other means).
(9) This paragraph applies if A is a personal adviser appointed for B under Article 34A(10) or 34C(2) of the 1995 Order, and, in that capacity, looks after B on an individual basis.
(10) This paragraph applies if—
(a) B is subject to a care order, a supervision order or an education supervision order, and
(b) in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis.
(11) This paragraph applies if A is appointed to be the guardian ad litem of B under Article 60(1) of the 1995 Order, and, in that capacity, regularly has unsupervised contact with B (whether face to face or by any other means).
(12) This paragraph applies if—
(a) B is subject to requirements imposed by or under a statutory provision on his release from detention for a criminal offence, or is subject to requirements imposed by a court order made in criminal proceedings, and
(b) A looks after B on an individual basis in pursuance of the requirements.
29.—(1) The following provisions apply for the purposes of Article .
(2) Subject to paragraph (3), a person looks after persons under 18 if he is regularly involved in caring for, training, supervising or being in sole charge of such persons.
(3) A person (A) looks after another person (B) on an individual basis if—
(a) A is regularly involved in caring for, training or supervising B, and
(b) in the course of his involvement, A regularly has unsupervised contact with B (whether face to face or by any other means).
(4) A person receives education at an educational institution if—
(a) he is registered or otherwise enrolled as a pupil or student at the institution, or
(b) he receives education at the institution under arrangements with another educational institution at which he is so registered or otherwise enrolled.
(5) In Article —
“authority” has the meaning given by Article 2(2) of the 1995 Order;
“care order” has the same meaning as in the 1995 Order;
“children’s home” has the meaning that would be given by Article 9 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9) (“the 2003 Order”) if in paragraph (4) of that Article sub-paragraphs (d), (f) and (g) were omitted;
“education supervision order” has the meaning given by Article 49(1) of the 1995 Order;
“hospital” means a hospital within the meaning given by Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14), or any other establishment which is a hospital within the meaning given by Article 2(2) of the 2003 Order;
“independent clinic” has the meaning given by Article 2(2) of the 2003 Order;
“private hospital” has the meaning given by Article 90(2) of the Mental Health (Northern Ireland) Order 1986 (NI 4);
“residential care home” means an establishment which is a residential care home for the purposes of the 2003 Order;
“residential family centre” has the meaning given by section 22 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3);
“supervision order” has the meaning given by Article 49(1) of the 1995 Order;
“voluntary home” has the meaning given by Article 74(1) of the 1995 Order.
30.—(1) Conduct by a person (A) which would otherwise be an offence under any of Articles to against another person (B) is not an offence under that Article if at the time—
(a) B is 16 or over, and
(b) A and B are lawfully married or civil partners of each other.
(2) In proceedings for such an offence it is for the defendant to prove that A and B were at the time lawfully married or civil partners of each other.
31.—(1) Conduct by a person (A) which would otherwise be an offence under any of Articles 23 to 26 against another person (B) is not an offence under that Article if, immediately before the position of trust arose, a sexual relationship existed between A and B.
(2) Paragraph (1) does not apply if at that time sexual intercourse between A and B would have been unlawful.
(3) In proceedings for an offence under any of Articles to 26 it is for the defendant to prove that such a relationship existed at that time.
32.—(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) the relation of A to B is within Article 34,
(d) A knows or could reasonably be expected to know that his relation to B is of a description falling within that Article, and
(e) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(2) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(3) Where in proceedings for an offence under this Article it is proved that the relation of the defendant to the other person was of a description falling within Article 34, it is to be taken that the defendant knew or could reasonably have been expected to know that his relation to the other person was of that description unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that it was.
(4) A person guilty of an offence under this Article, if aged 18 or over at the time of the offence, is liable—
(a) where paragraph (6) applies, on conviction on indictment to imprisonment for a term not exceeding 14 years;
(b) in any other case—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(ii) on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(5) Unless paragraph (4) applies, a person guilty of an offence under this Article 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.
(6) This paragraph applies where 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,
(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.
33.—(1) A person (A) commits an offence if—
(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 Article ,
(d) A knows or could reasonably be expected to know that his relation to B is of a description falling within that Article, and
(e) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.