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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Overview of the proposals

7.8.The 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.

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