Chapter 3

Official Notes on Clauses for clauses 10-14 [sections 9-13]

 

Clause 10 [section 9]: Sexual activity with a child

14. Clause 10 [section 9] makes it an offence for a person aged 18 or over intentionally to sexually touch a child under 16. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. "Touching" is defined at clause 80(6) [section 79(8)]and covers all forms of physical contact including penetration; "sexual" is defined at clause 79 [section 78]. Whether or not the child consented to the activity is irrelevant.

 

Clause 11 [section 10]: Causing or inciting a child to engage in sexual activity

15. Clause 11 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 clause 79). Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. The caused sexual activity may be carried out on A (for example, where A causes the child to have sexual intercourse with him), on the child himself (for example, where A causes the child to strip for A's sexual gratification) or on a third person (for example, where A causes the child to have sexual intercourse with A's friend). The offence is also committed where incitement takes place but the sexual activity itself does not. Whether or not the child consented to the activity is irrelevant.

 

Clause 12 [section 11]: Engaging in sexual activity in the presence of a child

16. Clause 12 makes it an offence for a person (A) aged 18 or over intentionally to engage in sexual activity (as defined in clause 79) in the presence of a child aged under 16 to obtain sexual gratification. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. The offence is committed if A knows or believes that the child is aware that he is engaging in the activity or intends that the child should be aware of this. This offence would cover, for example, A masturbating himself in front of a child, or A masturbating himself in the presence of the child to whom he is describing what he is doing, perhaps because the child is covering his face.

 

Clause 13 [section 12]: Causing a child to watch a sexual act

17. Clause 13 makes it an offence for a person (A) intentionally to cause a child aged under 16, for the purpose of the sexual gratification of A, to watch a third person engaging in sexual activity or to look at a photograph or pseudo-photograph of a person engaging in sexual activity. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. The definition of sexual activity is at clause 79. Photograph and pseudo-photograph are defined by reference to the Protection of Children Act 1978 (clause 80(5)). A person who, for his own sexual gratification, forces a child to watch two people have sex or who forces a child to watch a pornographic film, would commit this offence.

 

Clause 14 [section 13]: Child sex offences committed by children or young persons

18. Clause 14 makes it an offence for a person aged under 18 to do anything that would be an offence under any of clauses 10 to 13 if he were aged 18 or over. The purpose of this offence is to provide a lower penalty where the offender is aged under 18.