Sexual Offences Act 2003 s.17 – Abuse of position of trust: causing or inciting a child to engage in sexual activity

[^F12 (1)A person aged 18 or over (A) commits an offence if—

(a)he intentionally causes or incites another person (B) to engage in an activity,

(b)the activity 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.^F12]

Cases considering section 17 3

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]).

Forbes & Ors, R v

[2016] EWCA Crim 1388 · 12 September 2016Limits

The court held that section 17 was an unsuitable modern comparator for historic offending against children below the age of consent. (see paras [12]; [62]-[65])

G, R (on the application of) v X School & Anor

[2009] EWHC 504 (Admin) · 18 March 2009

Was considered because the alleged conduct might constitute causing or inciting a child to engage in sexual activity. The potential criminal offence did not determine the Article 6 classification of the disciplinary process. (see paras [33]–[34], [58], [63])

What each judgment says about section 17 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

F12Ss. 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

Sexual Offences Act 2003, section 17

Definitions used in section 17 1