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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Familial sex offences against children under 18
Article 31: Articles 23 to 26:  sexual relationships which pre-date position of trust

7.74.Article 31 provides A with a defence to abuse of position of trust offences if he can prove that his sexual relationship with B pre-dated his relationship of trust with B. So if A could prove that he and B had a sexual relationship before A went to work at the school at which B is a pupil, he would not commit an offence by continuing that sexual relationship. The effect of paragraph (2) is to limit this to the situation where the sexual relationship that pre-dated the relationship of trust was lawful, so it would not cover for example a relationship with a child of under 16.

Article 32: Sexual activity with a child family member

7.75.Article 32 makes it an offence for a person (A) intentionally to touch a family member (as defined in Article 34) aged under 18, where the touching is sexual. The meaning of touching is explained at Article 2(11). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at Article 4. Additional elements of the offence are that A must know, or be in a position where he could reasonably be expected to know, that the child is his family member and that, except where the child is under 13, he does not reasonably believe that the child is 18 or over.

7.76.So if, for example, A has never met the child before, and so does not know, and could not reasonably be expected to know, that she is his sister, and reasonably believes she is over 18, he will not commit this offence by engaging in sexual activity with her, even though she is in fact his sister, and only 14.

7.77.In relation to both these last two elements of the offence A is under an evidential burden (paragraphs (2) and (3)). This means that unless A shows from the evidence that there is an arguable case about these issues, it is presumed that he did not reasonably believe the child to be 18 or over, and that he knew or could reasonably have been expected to know that the child was his family member. Whether or not the child consented to the touching is irrelevant.

Article 33: Inciting a child family member to engage in sexual activity

7.78.Article 33 makes it an offence for a person (A) intentionally to incite a child family member (defined in Article 34) aged under 18 either to touch A or to allow himself to be touched by A, where the touching is sexual. The meaning of touching is at Article 2(11). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at Article 4. An example of this offence would be where A encourages B to masturbate A or cajoles B into agreeing to have sex with him. The offence is committed whether or not the sexual touching takes place. So where in the above example A has encouraged B to masturbate him, but the masturbation does not take place because another person enters the room, the offence is nevertheless complete. The two additional elements of the offence (and the evidential burdens) described in relation to Article 32 apply to this section too (paragraphs (1)(d) and (e), (2) and (3)). Whether or not the child consented to the incitement, or the activity being incited is irrelevant.

Article 34: Family relationships

7.79.Article 34 lists the relationships relevant for the purposes of Articles 32 and 33. Article 40 of the Adoption (Northern Ireland) Order provides that an adoptive child is the child of the adoptive parents and not the biological parents. Adoptive relationships are therefore covered by paragraphs (1)(a). The categories at paragraphs (2) to (4) also apply (by virtue of subsection (1)(b)) to the adoptive child's biological family relationships. These relationships fall into three categories.

7.80.The first category of relationships is listed in paragraph (2). Definitions of the relationships mentioned at paragraph (2) are at paragraph (5)(a) to (c). Persons whose relationships fall within this category will always be each other's family members for the purposes of Articles 32 and 33. Even where there is no blood relationship and the relationship can therefore cease - as in the case of foster parents - this offence may be committed for as long as the victim is under 18. So for example even where A is no longer a child's foster parent, A will commit an offence by having sex with that child while the child is under 18.

7.81.The second category of relationships is listed in paragraph (3). The relationship between A and a child will only fall within this category for the purposes of Articles 32 and 33 if A lives, or has lived, in the same household as the child or is, or has been, regularly involved in caring for, training or supervising or being in sole charge of the child. Paragraph (3)(a) relates to step-parents, (3)(b) relates to cousins, (3)(c) relates to step-siblings and (3)(d) relates to foster-siblings. The definition of foster parent is at paragraph (5)(c) and the definition of step-parent, stepbrother and stepsister is at paragraph (5)(e). An example within this category would be a person (A) who lives or has lived in the same house as his first cousin who is under 18. If the cousins had never lived in the same household, A would not commit this offence by having a sexual relationship with the cousin. As with the first category, if the relationship ceases (for example A ceases to be the partner of the child's mother), the offence will still be committed if A has sex with the child while the child is under 18.

7.82.An example of the third category of relationships (at paragraph (4)) would be where a child is living in the same household as an au pair who looks after him. This category of relationship differs from the other two categories in that an offence will not be committed if A has a sexual relationship with the child after the relationship has ceased, even where the child is under 18. So, in this example, if the au pair were to leave the household and/or cease to have responsibility for the child, then the relationship would no longer be relevant for the purposes of Articles 32 and 33.

Article 35: Articles 32 and 33: exceptions for spouses and civil partners

7.83.This Article provides A with a defence to the offences under Articles 32 and 33 if he can prove that at the time of the act the child was aged 16 or over and he was lawfully married or a civil partner to the child.

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