B1363 - The Sexual Offences and Rights Bill 2018 (Second Reading Watch

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B1363 - The Sexual Offences and Rights Bill 2018 (Second Reading), TSR Labour Party


The Sexual Offences and Rights Bill 2018



An Act to address the legal inconsistencies between digital/virtual and physical sexual activities, and provide increased sexual rights and protections for young people.

BE IT ENACTED by the Queen's most excellent Majesty, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows:-

1: Repeals
(1) Repeal Section 13 of the Sexual Offences Act 2003.
(2) Repeal Chapter 69, Section 5 of the Criminal Law Amendment Act 1885.
(3) Repeal Section 1 of the Sexual Offences (Amendment) Act 2000.
(4) Repeal Sections 3(1A) to 3(6) of the Marriage Act 1949.
(1)(a) Any marriage solemnised in accordance with these sections, prior to commencement of this Act, remain legally valid and recognised.

2: Sexual Activities
(1) A minor may assent to sexual activity if all of the following conditions are met:-
(1)(a) Person A and person B are over 12 years of age.
(1)(b) Person A is within 2 years (730 days) of age to person B.
(1)(c) Person A does not have a position of trust or dependency over person B.
(1)(d) Person A did not coerce, exploit, force or otherwise pressure person B to engage in sexual activity.
(2) The age of consent for engaging in all sexual activities, either digitally or physically, will be recognised as 18 years of age.
(3) Person A will not be liable for prosecution under Section 2(2) of this Act if assent was given and all the conditions of section 2(1) of this Act were met when giving assent.

3: Sexual Imagery
(1) It is an offence for person A to distribute sexual imagery of themselves if aged below 18 years of age.
(2) It is an offence for person A to possess or produce sexual imagery of person B if person B is below the age of 18.
(3) When person A would be liable for prosecution under section 3(1) or 3(2) of this Act, it is a defence if:
(1)(a) Person A and person B (the recipient) meet all of the conditions outlined under sections 2(1)(a) to 2(1)(d) of this Act.
(4) It is an offence for person A to distribute sexual imagery of themselves to person B, if they cannot be reasonably certain that person B meets the conditions laid out in section 2(1)(a) and 2(1)(b) of this Act.
(5) It is an offence for Person A to distribute sexual imagery of person B, even if person C is within 2 years (730 days) of age to person B.
(6) Person A is not liable for prosecution if all the conditions laid out in section 3(3) of this Act are met.

4: Legislation Amendments
(1) Amend Section 37(1) of the Protection of Children Act 1978 from:
it is an offence for a person—
to:
it is an offence for a person aged 18 years of age or above—

(2) Amend Section 15A(1)(C) of the Sexual Offences Act 2003 from:
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
to:
(c) B is over 2 years (730 days) of age to A, and A does not reasonably believe that B is under 2 years (730 days) of age to them.
(d) B is below the age of 13.

(3) Amend Section 15 of the Sexual Offences Act 2003 to add:
Section 15(B): Child sex offences committed by children or young persons
(1) A person under 18 years of age commits an offence under sections 9 to 15 of this Act, or under sections 2 to 3 of The Sexual Offences and Rights Act 2018, if:
(a) Person A uses coercion, exploitation, force or pressure on person B to facilitate their engagement in any of the accused activity.
(b) Person A is not within 2 years (730 days) of age to person B.

(4) Amend Section 160 of the Criminal Justice Act 1988 from:
it is an offence for a person to have any indecent photograph [or pseudo-photograph] of a child. . . in his possession.
to:
(1) it is an offence for any person to have any indecent photograph [or pseudo-photograph] of a child below the age of 12. . . in his possession.
(2) it is an offence for a person to possess any indecent photograph of a child between the ages of 13 to 17 if the child photographed did not willingly produce the imagery and/or directly distribute it solely for their intended possession.
(1)(a) this distribution must have occurred within the conditions outlined under Section 2(1)(a) to 2(1)(d) of The Sexual Offences and Rights Act 2018.
(3) it is an offence for a person to possess any indecent photograph of a child between the ages of 13 to 17 years of age if they are over two years (730 days) older than the child.
(4) Person B will become liable for prosecution if they continue to possess any indecent photograph of a child for the purposes of sexual gratification and are over the age of 19, even if the photograph was originally received within the conditions of Section 3(3) of The Sexual Offences and Rights Act 2018.

(5) Amend Section 12 of the Sexual Offences Act 2003 from:
12. Causing a child to watch a sexual act
(1) A person aged 18 or over (A) commits an offence if—
(1)(a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(1)(b) the activity is sexual, and
(1)(c) either—
(1)(1)(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(1)(1)(ii) B is under 13.
to:
12. Causing a minor to watch a sexual act
(1) A person commits an offence if—
(1)(a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a person engaging in an activity, or to look at an image of any person engaging in an activity,
(1)(b) the activity is sexual, and
(1)(c) either—
(1)(1)(i) B is over 2 years (730 days) younger than person A and A does not reasonably believe B is within 2 years (730 days) of age to them, or
(1)(1)(ii) B is under 13.

5: Definitions
(1) For the purposes of this bill, "sexual activity" is defined as being any of the behaviours listed under Section 9(2) and Section 12 of the Sexual Offences Act 2003.
(2) For the purposes of this bill, a "minor" is defined as any individual aged between 13 years of age and 17 years of age.
(3) For the purposes of this bill, "sexual imagery" is defined as a digital or printed image, video, or other form of communicative media which depicts partial or full nudity of an individual below the age of 18 years for purposes of sexual gratification.
(4) For the purposes of this bill, "distribution" will refer to the transmission of imagery from one person to another by any means, including intentionally displaying the imagery on a device screen to another person.

6: Pardons
(1) Any person who has been convicted of, or cautioned for, an offence which would no longer be liable for prosecution under this Act shall have this offence expunged from their criminal record.

7: Extent, Commencement and Short Title
(1) This Act extends to the United Kingdom.
(2) The provisions of this Act come into force upon royal assent.
(3) This Act may be cited as the Sexual Offences and Rights Act 2018.


Notes
Spoiler:
Show




This Act is designed to address a variety of legal discrepancies which have emerged following the rise of online communication and the ability for young people to produce and distribute sexual imagery of themselves. To achieve this, it seeks to align the age of consent with laws regulating pornographic imagery, as well as providing further clarity on Section 15A of the Sexual Offences Act 2003. Under current law, a couple who are of similar age to each other may be liable for prosecution for engaging in sexual activity, and there is also the possibility that a relationship where both parties can legally consent to sexual intercourse are otherwise criminalised from engaging in sexual communication digitally, such as an 18 year old and 17 year old couple who would be prohibited from producing and distributing sexual imagery between each other despite being of legal age for consenting to intercourse.

Furthermore, the bill aims to provide sexual rights to young people, whilst providing strong protections to prevent the sexual abuse of minors from older individuals. It recognises the limited capacity for young people to assent to sexual activity, and aligns the law to the current practices of the Crown Prosecution Service (CPS):
"Whilst it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship, a prosecution may be appropriate in other scenarios, such as those involving exploitation, grooming or bullying.".
Source: https://www.cps.gov.uk/legal-guidanc...t-social-media

By increasing the age of consent to 18, this will ensure statutory alignment for all areas of sexual activity. Whilst it could be argued that lowering the age for sending sexually explicit material to 16 would also accomplish this, doing so would risk falling foul of a wide variety of international laws relating to pornography and self-produced sexual imagery, which is understandably problematic given the global ease in which such images can be transmitted. The increased age of consent also reflects changes to economic capital facing young people, as 16 and 17 year olds are now legally required to either continue into further education until 18 years of age, or be on an apprenticeship scheme which has a minimum wage of £3.50 per hour. These barriers therefore make it exceedingly difficult for young people aged 16 or 17 to legally have children and to be financially capable of affording the costs associated with this.

By enshrining these rights and protections into law, rather than leaving them at the subjective interpretation and arbitrary enforcement of the CPS, the bill ensures that the sexual rights and protections of young people are safeguarded in a clear and consistent manner. This will ensure that young people are not unfairly punished for engaging in consensual sexual activity with their peers, whilst reflecting the public interest's fierce desire to protect the well-being of young people and facilitate future generations of healthy and independent family households. The bill has borrowed heavily from Canada's 'close-in-age' exceptions within their regulation of sexual activity, which has provided Canadian young people with sufficient legal protections from arbitrary and heavy-handed prosecution for sexual activity. However, their system still has the same discrepancies in place as the United Kingdom when regulating self-generated child sexual imagery distributed amongst peers, and therefore this bill takes their 'close-in-age' principle and broadens it within UK law.






Changes from First Reading
Spoiler:
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  • Section 1(4) increases the minimum age of marriage to 18 by removing the right of parents/guardians to consent to marriage for any 16/17 year olds they exercise parental responsibility over. Any existing marriages solemnised in accordance with these sections prior to the commencement of this legislation will remain valid. This law applies equally to opposite-sex and same-sex marriages.
  • Section 2 has been redrafted to clarify assent and consent.
  • Section 4(4)(4) has been amended to clarify that an individual only becomes liable for prosecution for possession in the scenario if the offending image of a minor is being used for purposes of sexual gratification by the adult
  • Added Section 4(5) to rebuild Section 12 of the Sexual Offences Act 2003, which relate to 'causing a minor to watch a sex act'. These just align the relevant sections to the new conditions contained within this bill.
  • Section 5 has been updated to include the definition of a "minor".



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barnetlad
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I thank the author of the Bill for making the changes about marriage.
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Jammy Duel
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12 year old having sex...
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username2718212
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This bill is horrid and I unequivocally condemn it.
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LPK
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(Original post by barnetlad)
I thank the author of the Bill for making the changes about marriage.
Thank you for the suggestion. :yy:

---

Jarred - Please see the revised Section 4(4)(4) clause, which I changed following your question about what would happen if a person accidentally kept an image for an extended period of time. This provision has now been altered so that the person must be using the image of the child for purposes of sexual gratification, so somebody accidentally keeping the image would not be liable. Are you happy with this or have any remaining concerns?

---

There is still a provision I need to make following the discussion I had with Little Toy Gun after the second reading was submitted, so members can expect a further change either at third reading or when this goes to division. It will essentially just be providing protections for the 13-14 members of the assent group so that they cannot be so easily accused of statutory rape if they fail to distinguish between somebody who is of similar age but outside of the age bracket (e.g. a 12 year old lying about their age).

I'm still figuring out the logistics of this particular safeguard so it's a 'watch this space' at the moment.
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LPK
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(Original post by Jammy Duel)
12 year old having sex...
No, the right to assent does not begin until 13. Section 2(1)(a) specifically states that as part of the 4 conditions which must be met.
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This bill is horrid and I unequivocally condemn it.
If you elaborate on what bits you find objectionable then I'm happy to explain the rationale behind it, even if I ultimately do not convince you to support it. I'm not sure what bits you deem horrid, but I'm happy to listen if you wish to discuss your concerns.
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Jammy Duel
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(Original post by LPK)
No, the right to assent does not begin until 13. Section 2(1)(a) specifically states that as part of the 4 conditions which must be met.
Doesn't really make it any better
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CountBrandenburg
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If I wasn’t gonna support it in its first reading... I’m sure as hell aren’t supporting it here. From what fresh hell did this get pulled out from
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LPK
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(Original post by Jammy Duel)
Doesn't really make it any better
It isn't about making it "better". It's about recognising that if two minors of a particular age do happen to engage in a sexual relationship, under the specified conditions, then it should not be treated as a criminal justice matter.

The purpose is that there is no legal benefit to putting a minor on the sex offenders register for engaging in sexual activity with another peer, and yet something which two people do at, let's say, 14 years of age can potentially lead to a criminal record and restrict them from certain occupations for life.
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Jammy Duel
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It isn't about making it "better". It's about recognising that if two minors of a particular age do happen to engage in a sexual relationship, under the specified conditions, then it should not be treated as a criminal justice matter.

The purpose is that there is no legal benefit to putting a minor on the sex offenders register for engaging in sexual activity with another peer, and yet something which two people do at, let's say, 14 years of age can potentially lead to a criminal record and restrict them from certain occupations for life.
No, instead you're just telling 13 year olds it's okay to have sex
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(Original post by CountBrandenburg)
If I wasn’t gonna support it in its first reading... I’m sure as hell aren’t supporting it here. From what fresh hell did this get pulled out from
There hasn't been any substantive change between the two readings, so I can't envisage what particular amendment between first and second reading would have significant enhanced your opposition.

Nevertheless, the offer is there if you wish to express your concerns and hear the justifications for it. It's aiming to be a balance between not putting young people on the sex offenders register for peer relationships, whilst ensuring that there are clear protections in place to protect them from abuse. If you don't feel this is being achieved for whatever reasons then I'm happy to engage in discussion on that.
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username2718212
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If you elaborate on what bits you find objectionable then I'm happy to explain the rationale behind it, even if I ultimately do not convince you to support it. I'm not sure what bits you deem horrid, but I'm happy to listen if you wish to discuss your concerns.
I find the whole bill incredibly disturbing. I don't think any of these sections should be amended. It could potentially encourage sexual relations between children and could, in turn, result in higher rates of teenage pregnancy. We should not be encouraging this behaviour - we should be condemning it.

My legal mind is screaming...
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LPK
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(Original post by Jammy Duel)
No, instead you're just telling 13 year olds it's okay to have sex
If that were the case, I wouldn't be proposing to shift the age of consent to 18. What I'm doing is making those types of issues largely a private family matter to be dealt with, rather than one which should involve the criminal justice system.

I'm not exactly thrilled by the thought of minors having peer relationships, but I don't think they're waiting for the green light from me. I just don't think we should be putting them on the sex offenders register or treating them as criminals when there's no evidence of abuse, exploitation etc.
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Aph
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No, instead you're just telling 13 year olds it's okay to have sex
They are going to do it anyway, society has changed and the law needs to keep up. Sex education starts at year 6 these days and we need to accept reality rather than try and enforce a law that isn’t working.
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Whilst I support the alignment of the ages of consent to remove confusion and legal ambiguities, I, unfortunately, cannot and will not support the notion of a 'close-in-age' system - especially, one that comes into effect when the subject turns 12; no matter what anyone says 12 year olds are completely unaware of the risks of sexual activity.

Nay.
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Jammy Duel
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They are going to do it anyway, society has changed and the law needs to keep up. Sex education starts at year 6 these days and we need to accept reality rather than try and enforce a law that isn’t working.
That is an argument that can apply to pretty much anything, people kill each other anyway so let's get rid of murder legislation.

(Original post by LPK)
If that were the case, I wouldn't be proposing to shift the age of consent to 18. What I'm doing is making those types of issues largely a private family matter to be dealt with, rather than one which should involve the criminal justice system.

I'm not exactly thrilled by the thought of minors having peer relationships, but I don't think they're waiting for the green light from me. I just don't think we should be putting them on the sex offenders register or treating them as criminals when there's no evidence of abuse, exploitation etc.
Thing is you say you're increasing the age of consent to 18, meanwhile you're legislating for legal sex between 13 year olds which renders the increase somewhat impotent.
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LPK
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(Original post by Vitiate)
I find the whole bill incredibly disturbing. I don't think any of these sections should be amended. It could potentially encourage sexual relations between children and could, in turn, result in higher rates of teenage pregnancy. We should not be encouraging this behaviour - we should be condemning it.

My legal mind is screaming...
Young people aren't waiting for some sort of green light from MP's before deciding whether they want to go at it or not. They do so regardless, and condemning it and seeking to criminalise them has the effect of increasing the risk of a sexual mishap or pregnancy.

Something can be legally permissible under certain mitigating circumstances without being unquestionably criminalised. For example, I suspect we both share concerns regarding the capacity for a 16 year old to have a baby and start a family unit, but that legalisation doesn't mean we are encouraging it. It's just a line that is there to provide some form of clarity on when something should not be treated as a criminal justice matter, regardless of how socially desirable it may be.
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LPK
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(Original post by Jammy Duel)
Thing is you say you're increasing the age of consent to 18, meanwhile you're legislating for legal sex between 13 year olds which renders the increase somewhat impotent.
I'm afraid I don't agree with you there. I'm ascribing a limited legal status to the right to assent, whereas the right to consent recognises the capacity of an adult to engage in sexual relationships with other adults. They're effectively tiered as concepts so that it does not become impotent.

After all, a 50 year old man is no more able to have sexual relations with a 15 year old under this legislation than they are today under the current framework. If anything, they're subjected to additional regulations, because they would no longer be permitted to engage in relations with a 16 or 17 year old. Whilst it may not be particularly desirable at 18/19/20 etc, the right to make an unwise decision under the mental capacity framework is their right to do.
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Mr T 999
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Mr Speaker

It appears the 2nd reading of this bill is somehow worse than the the 1st reading. I cannot support lowering the age of consent to 12 years old.
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