Sexual Offences Act 2003, section 16

Abuse of position of trust: sexual activity with a child

Part 1 Sexual Offences

[F11 (1)A person aged 18 or over (A) commits an offence if—

(a)he intentionally touches another person (B),

(b)the touching is sexual,

(c)A is in a position of trust in relation to B,

(d)where subsection (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and

(e)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)This subsection applies where A—

(a)is in a position of trust in relation to B by virtue of circumstances within section 21(2), (3), (4) or (5), and

(b)is not in such a position of trust by virtue of other circumstances.

(3)Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(4)Where in proceedings for an offence under this section—

(a)it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 21(2), (3), (4) or (5), and

(b)it is not proved that he was in such a position of trust by virtue of other circumstances,

it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances.

(5)A person guilty of an offence under this section 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 5 years.F11]

Definitions used in section 16 1

proceedings

(c) “proceedings” includes proceedings before a service court, and

Defined in s.137(1) · see it in the full Act

Cases considering section 16 5

R v Robert Hanna

[2023] EWCA Crim 33 · 19 December 2022

The conviction under this provision formed part of the position-of-trust offending considered when assessing whether a wider future risk to children could be inferred. The court found no such wider risk on the evidence (see paras [2]; [35]).

Glyn, R v

[2017] EWCA Crim 2463 · 3 November 2017

Section 16 was accepted as the modern equivalent for the count involving sexual activity by a person in a position of trust with a 16-year-old. It was not the appropriate equivalent for the other historic offences. (see paras [34]; [38]; [44])

Forbes & Ors, R v

[2016] EWCA Crim 1388 · 12 September 2016Limits

The court held that section 16 was an unsuitable modern comparator for historic offending against children below the age of consent. (see paras [12]; [62]-[65])

What each judgment says about section 16 is in the case-law panel in the full Act.

Explanatory note

31.These sections re-enact and amend the offence of abuse of position of trust under sections 3 and 4 of the Sexual Offences (Amendment) Act 2000. The sections each provide that it is an offence for a person (A) aged 18 or over intentionally to behave in certain sexual ways in relation to a child aged under 18, where A is in a position of trust (as defined in section 21) in respect of the child. The prohibited behaviour in each of the sections is identical to that prohibited by the child sex offences in sections 9, 10, 11 and 12 respectively, except that for the abuse of position of trust offences, the child may be 16 or 17.

32.Except where the child is under 13, one of the requirements of the offence is that A does not reasonably believe that the child is 18 or over, and A is subject to an evidential burden in relation to this aspect of the offence (subsection (3) of each section). An evidential burden means that, unless A shows from the evidence that there is an arguable case as to whether he reasonably believed the child to be 18 or over, it is presumed that he did not reasonably believe this. Where the child is under 13, the offence is committed regardless of any belief A might have in relation to the child’s age.

33.The effect of subsection (1)(d) (or in the case of section 18, subsection (1)(e)) is that, where A is in a position of trust by virtue of one of the first four categories of position of trust set out at section 21, the prosecution must prove, in addition to the other requirements, that he knew or could reasonably have been expected to know of the facts placing him in a position of trust with the child. Subsection (4) of each section puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of the facts giving rise to the position of trust, it is presumed that he did know or could reasonably have been expected to know them. The first four categories of position of trust all concern situations where A looks after persons under 18 at an institution and the child is at that institution. Subsection (4) is designed to cover cases where, for example, the institution where A works is very large or has a number of different sites, and A may not therefore know that the child is at the institution.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F11Ss. 16-24 repealed (N.I.) (2.2.2009) by The Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)), arts. 1, 78(b), Sch. 3 (with Sch. 2 par. 1); S.R. 2008/510, art. 2