Office of Public Sector Information
PART 3 continued
34.—(1) The relation of one person (A) to another (B) is within this Article if—
(a) it is within any of paragraphs (2) to (4), or
(b) it would be within one of those paragraphs but for Article 40 of the Adoption (Northern Ireland) Order 1987 (NI 22) (status conferred by adoption).
(2) The relation of A to B is within this paragraph if—
(a) one of them is the other’s parent, grandparent, brother, sister, half-brother, half-sister, aunt or uncle, or
(b) A is or has been B’s foster parent.
(3) The relation of A to B is within this paragraph if A and B live or have lived in the same household, or A is or has been regularly involved in caring for, training, supervising or being in sole charge of B, and—
(a) one of them is or has been the other’s step-parent,
(b) A and B are cousins,
(c) one of them is or has been the other’s stepbrother or stepsister, or
(d) the parent or present or former foster parent of one of them is or has been the other’s foster parent.
(4) The relation of A to B is within this paragraph if—
(a) A and B live in the same household, and
(b) A is regularly involved in caring for, training, supervising or being in sole charge of B.
(5) For the purposes of this Article—
(a) “aunt” means the sister or half-sister of a person’s parent, and “uncle” has a corresponding meaning;
(b) “cousin” means the child of an aunt or uncle;
(c) a person is a child’s foster parent if—
(i) he is a person with whom the child has been placed under Article 27(2)(a) or 75(1)(a) of the 1995 Order (fostering), or
(ii) he fosters the child privately, within the meaning given by Article 106(1) of the 1995 Order;
(d) a person is another’s partner (whether they are of different sexes or the same sex) if they live together as partners in an enduring family relationship;
(e) “step-parent” includes a parent’s partner and “stepbrother” and “stepsister” include the child of a parent’s partner.
35.—(1) Conduct by a person (A) which would otherwise be an offence under Article 32 or 33 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.
36.—(1) Conduct by a person (A) which would otherwise be an offence under Article or 33 against another person (B) is not an offence under that Article if—
(a) the relation of A to B is not within paragraph (2) of Article 34,
(b) it would not be within that paragraph if Article 40 of the Adoption (Northern Ireland) Order 1987 (NI 22) did not apply, and
(c) immediately before the relation of A to B first became such as to fall within Article 34, a sexual relationship existed between A and B.
(2) Paragraph (1) does not apply if at the time referred to in paragraph (1)(c) sexual intercourse between A and B would have been unlawful.
(3) In proceedings for an offence under Article 32 or 33 it is for the defendant to prove the matters mentioned in paragraph (1)(a) to (c).
37.—(1) A person (A) commits an offence if—
(a) he intentionally obtains for himself the sexual services of another person (B).
(b) before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment, and
(c) 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) In this Article, “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.
(3) A person guilty of an offence under this Article against a person under 13, where paragraph (6) applies, is liable on conviction on indictment to imprisonment for life.
(4) Unless paragraph (3) applies, a person guilty of an offence under this Article against a person under 16 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 (3) or (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 7 years.
(6) This paragraph applies where the offence 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 by B with anything else, or
(d) penetration of A’s mouth with B’s penis.
38.—(1) A person (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to become a prostitute, or to be involved in pornography, in any part of the world, and
(b) 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) 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.
39.—(1) A person (A) commits an offence if—
(a) he intentionally controls any of the activities of another person (B) relating to B’s prostitution or involvement in pornography in any part of the world, and
(b) 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) 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.
40.—(1) A person (A) commits an offence if—
(a) he intentionally arranges or facilitates the prostitution or involvement in pornography in any part of the world of another person (B), and
(b) 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) 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.
41.—(1) For the purposes of Articles to 40, a person is involved in pornography if an indecent image of that person is recorded; and similar expressions, and “pornography”, are to be interpreted accordingly.
(2) In those Articles “prostitute” means a person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment to A or a third person; and “prostitution” is to be interpreted accordingly.
(3) In paragraph (2), “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.
42.—(1) The Protection of Children (Northern Ireland) Order 1978 (NI 17) (which makes provision about indecent photographs of persons under 16) is amended as follows.
(2) In Article 2(2) (interpretation), in the definition of “child”, for “sixteen” substitute “eighteen”.
(3) In Article 7(1) (evidence of person being a child at a material time) for “sixteen” substitute “eighteen”.
(4) In Article 3(1) (offences relating to indecent photographs of children) at the beginning insert “Subject to Articles 3A and 3B”.
(5) After Article 3A insert—
3B.—(1) This Article applies where, in proceedings for an offence under Article 3(1)(a) of taking or making an indecent photograph of a child, or for an offence under Article 3(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a) were married or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.
(2) Paragraphs (5) and (6) also apply where, in proceedings for an offence under Article 3(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a) were married or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.
(3) This Article applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.
(4) In the case of an offence under Article 3(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.
(5) In the case of an offence under Article 3(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.
(6) In the case of an offence under Article 3(1)(c), if sufficient evidence is adduced to raise an issue both—
(a) as to whether the child consented to the photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, and
(b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child,
the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.”
(6) The Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (NI 17) (possession of indecent photograph of child) is amended as follows.
(7) In Article 15(1), at the beginning insert “Subject to Article 15A”.
(8) After Article 15 insert—
15A.—(1) This Article applies where, in proceedings for an offence under Article 15(1) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a) were married or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.
(2) This Article also applies where, in proceedings for an offence under Article 15(1) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a) were married or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.
(3) This Article applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.
(4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.”
The Sexual Offences (Northern Ireland) Order 2008