Most people would agree that the proposed changes to the law on
sex offences have come not a moment too soon. While teddy boys went
out with the fifties, the Sexual Offences Act 1956 still makes up a
major part of the law on sex offences.
The government admits this law is “archaic, incoherent and
discriminatory” and fails to take into account subsequent changes
The proposed changes to the act announced by the home secretary
last week are wide-ranging. Protecting the Public includes a number
of new offences aimed at protecting children, as well as measures
to tighten up the Sex Offenders’ Register to allow closer
monitoring of sex offenders’ whereabouts.
In addition the paper introduces three offences designed to improve
the protection of people with learning difficulties or a mental
The foundations for updating the sex offences laws were laid in
1999 when the government set up the independent Sex Offences
Review. Recommendations from this review were put out for
consultation in Setting the Boundaries in July 2000, with the
consultation ending in March last year.
A spate of high-profile sex offences against children in recent
years have led to calls for closer monitoring of known paedophiles.
Since the murder of Sarah Payne there have been demands for the
public to know about sex offenders living in their area. But the
new paper sets out quite clearly that the government is against
such a move, pointing out that “evidence from across the world
demonstrates that public access to this type of register drives sex
However, the proposals should improve the police’s ability to
monitor known sex offenders. Sex offenders will have to confirm
their details in person at police stations every year. In addition,
the amount of time an offender has to let police know of a change
to his name or address will be reduced from 14 days to three days,
and offenders must inform police if they spend seven or more days
at any other address, rather than after 14 days as is the case
The paper introduces a new offence of sexual grooming, “designed to
catch those aged 18 or over who undertake a course of conduct with
a child under 16 leading to a meeting where the adult intends to
engage in sexual activity”. Its aim is to stop any sexual activity
before it happens, once an individual’s intentions become
Tink Palmer, principal policy and practice manager at children’s
charity Barnardo’s, anticipates that, while this offence will be
applied in relation to the internet, it is also likely to apply to
behaviour in the community.
“We are going to need guidelines from the Home Office about the
issues,” Palmer says, highlighting the need to set out exactly what
constitutes grooming. “I don’t think it is a bad law but we need to
look at how to implement and prove it.”
Barnardo’s has been campaigning for eight years on the issue of
sexual exploitation of children and has been asking for children
abused through prostitution not to be viewed as criminals.
Unsurprisingly then, Palmer welcomes the new offence of “commercial
sexual exploitation of a child”, which will protect children up to
Under this offence buying sex from a child, as well as encouraging
a child into sexual exploitation and controlling the activities of
a child involved in prostitution or pornography, will carry severe
But Palmer has doubts about the proposals’ enforcement.
“I have huge concerns because they haven’t got the resources to
implement the policing that is needed,” she says, pointing out that
child protection was not made a key priority in the National
Policing Plan announced last week.
The paper also introduces an offence of “sexual activity between
minors”. Chris Atkinson, policy adviser at the NSPCC explains that
while sexual activity between children is often consensual it can
also be abusive. But she remains concerned that there are no plans
to change the Sex Offenders Act 1997, which in certain
circumstances can require children to register on the Sex
Atkinson describes the 1997 act as a crude mechanism and says that
assessment is often more appropriate for children. “You need to
treat them as children in need and treat them differently to
adults,” she says.
With attention in the immediate aftermath of the document’s
publication being largely focused on the improved protection for
children and the changes to the rape laws, the three new offences
aimed at improving the protection of people with learning
difficulties and a mental disorder have been overshadowed.
One of these offences is that of “sexual activity with a person who
did not, by reason of a learning disability or mental disorder at
that time, have the capacity to consent”.
Richard Kramer, head of policy at Turning Point, welcomes the
government’s recognition of this problem but believes that the
definition of “capacity to consent” needs further
“The document needs to clarify how to define capacity to consent.
We think it would include the ability to understand the nature of
sex – which is different from medical care – and that someone
understands the consequences such as pregnancy and sexually
transmitted diseases. If they can’t meet these criteria then they
are unlikely to be able to consent,” he says.
Another new offence is that of “breach of a relationship of care”.
This offence is aimed at protecting people with learning
difficulties or a mental disorder who are able to consent but are
vulnerable to exploitative behaviour. But Kramer feels that this
also needs further discussion.
“The government needs to define what care settings it means. We
think it should include day centres and leisure settings and unpaid
as well as paid staff.”
The proposed maximum penalty for this offence is seven years
imprisonment. However the penalties for sexual activity with a
person unable to consent and for the other new offence, “obtaining
sexual activity by inducement, threat or deception with a person
who has a learning disability or mental disorder”, are life. Some
feel that the breach of a relationship of care should carry the
“We are disappointed that the government’s proposals have a maximum
of seven years and we will be lobbying hard to get a similar level
of penalty as other offences,” says David Congdon, policy
spokesperson for learning difficulty charity Mencap.
He adds that the difficulty remains in proving that the act took
place and that allegations need to be investigated immediately in
order to obtain DNA evidence.
“We have got to change the climate so that people do take it
seriously and listen to people with learning difficulties and
ensure allegations are properly investigated at that stage,”
The proposals contained within this Home Office paper could go a
long way in improving protection for children and those with
learning difficulties or a mental disorder. As David Blunkett
acknowledges in his foreword, “we cannot hope to provide 100 per
cent safeguards and protection”. But the general feeling is that
modernising the laws at least represents a step in the right
Protecting the Public from www.homeoffice.gov.uk
New offences AGAINST children
Sexual grooming – maximum of five years’ imprisonment.
Commercial sexual exploitation of a child – maximum life.
Adult sexual activity with a child – maximum 14 years.
Abuse of a position of trust – maximum five years.
Sexual activity between minors – maximum five years. (Where the
offender is under 18 and engages in unlawful sexual activity with a
child under 16.)
All cases of sexual intercourse with children under 13 to be
charged as rape. (Children under 13 to be considered incapable of
legally significant consent.)
New offences AGAINST people with learning
Sexual activity with a person who did not by reason of a learning
disability or mental disorder at that time have the capacity to
consent – maximum life.
Obtaining sexual activity by inducement, threat or deception with a
person who has a learning disability or mental disorder – maximum
Breach of a relationship of care – maximum seven years.