Sexual Offences Act 2003

The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.

It replaced older sexual offences laws with more specific and explicit wording. It also created several new offences such as non-consensual voyeurism, assault by penetration, causing a child to watch a sexual act, and penetration of any part of a corpse.

Major changes
Part I of the Act makes many changes to the sexual crimes laws in England and Wales (and to some extent Northern Ireland), almost completely replacing the Sexual Offences Act 1956.

Rape has been redefined from the Sexual Offences Act 1956 (amended in 1976 and 1994) to read: A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.

Rape previously did not include penetration of the mouth. The Act also changes the way in which lack of consent may be proved, and section 75 and 76 of the Act list circumstances in which lack of consent may be presumed.

A new offence of assault by penetration is defined as penetration with any object to the anus or vagina.

The act also now includes provisions against sex tourism. People who travel abroad with the intent to commit sexual offences can have their passports revoked or travel restricted. However, this part of the Act has yet to be enforced by a test case in the UK and has been criticised by numerous high profile litigants due to its complexities.

The definition of child pornography has been changed to also include images of 16 and 17 year olds (note that the age of consent remains at 16).

Group homosexual sex has been decriminalised.

Part II of the Act also consolidated the provisions of the Sex Offenders Act 1997 on registration of sex offenders and protective orders. These provisions generally apply throughout the United Kingdom.

Section 45 changed revised the definition of a child in the Protection of Children Act 1978 (which applies to child pornography) from age 16 to 18.

The Sexual Offences Act 2003 creates further offences relating to prostitution.
 * Sections 47 to 50 prohibit child prostitution.
 * Sections 52 and 53 prohibit pimping for financial gain.
 * Sections 57 to 59 create offences relating to sex trafficking.
 * The Act also inserted a new section 33A into the Sexual Offences Act 1956, which relates to brothels.

"Consent"
The Act made significant changes to the legal definition of consent.

Section 75
Section 75 of the act introduces a number of evidential presumptions in relation to consent that the defendant must overturn if the prosecution proves existed at the time of intercourse or other relevant sexual act (such as the fact that victim was asleep) that the victim didn't or couldn't consent. To do this, the defendant would be required to give sworn evidence, which would require him or her taking the stand, thus leaving themself open to cross-examination by the prosecution. Section 75 doesn't shift the burden of proof from the prosecution but, by refusing to give evidence, a court may make an adverse inference in holding that a defendant effectively admits that the victim did not or could not consent. This 'virtual reverse onus' provision, intrinsic to the statute, has been criticised as an erosion of the legal concept of 'the Presumption of Innocence' through intransigent legislation.

Section 76
Section 76 of the act introduces a number of conclusive presumptions. These are where the defendant deceives the victim to the nature or purpose of relevant act (i.e. fraud) and where the defendant induces the victim to consent by impersonating someone known to the complainant. Where this it is proven the law states that it is conclusively presumed that the defendant did not believe that the complainant consented to the relevant act and the complainant did not consent to the relevant act.

Dual criminality
Section 72 provides differing levels of dual criminality for specified offences according to the UK citizenship status of an offender. For UK nationals, acts performed outside the UK that would amount to an offence in the UK can be prosecuted as if they had been performed in the UK. Acts performed outside the United Kingdom have to constitute an offence in the country where they are committed, in order to constitute an offence under this Act.

Criticisms
The Act has faced criticism on several grounds, the most controversial of which is the criminalising of various common behaviours, such as laws which, on the face of it, outlaw consensual "sexual hugging" in public places or by underage persons, even when both participants are underage, followed by the issue of guidance notes which countermand this, saying they should almost never be prosecuted.

The law is unique since neither the Home Office nor the Police have any intention of policing it or prosecuting those who break it except in extreme circumstances. This has not changed much; the Police and the Crown Prosecution Service claim they have not been actively pursuing underage sex by teenagers.

The Home Office says legalising consensual sexual activity between children "would damage a fundamental plank in our raft of child protection measures". A spokesman said, "We are not prepared to do this. We accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it. We are putting safeguards in place to ensure that these cases, which are not in the public interest, are not prosecuted - by amending guidance to the police and Crown Prosecution Service".

Criticism comes from Action on Rights for Children: "Laws should mean what they say. It's astonishing that the government could consider legislation with the prior intent of issuing guidance to countermand it. I worry about the message it sends to young people - it seems to say that sometimes the law means what it says and sometimes it doesn't.". Spokesperson Terri Dowty also fears that it could lead to unreasonable private prosecutions, such as by angry parents who don't like their child's boyfriend or girlfriend.

Professor Nicola Lacey of the London School of Economics comments: "What the Home Office would say was that they wanted to use the criminal law for symbolic impact, to say that it's not a good thing for kids to be having sex. My counter-argument is that the criminal law is too dangerous a tool to be used for symbolic purposes. With this on the statute book, it will give police and prosecutors a lot of discretion. It could be used as a way of controlling kids who perhaps the police want to control for other reasons. Kids who perhaps are a nuisance or who belong to a group who attract the attention of the police in some way.".

Transition from old to new law
The 2003 Act repealed various sections of the Sexual Offences Act 1956 and several other statutes dealing with sexual offences. Section 141 of the Act gave the Home Secretary the power to make rules by statutory instrument to deal with the transition from the old to the new laws, to cover the situation where a defendant is charged with offences which overlap the commencement date of 1 May 2004. However no such "transitional provisions" were ever made. This resulted in cases where, when a defendant was accused of committing a sexual offence but the prosecution could not prove the exact date, and the offence could have been committed either before or after 1 May 2004, he had to be found not guilty, regardless of how strong the evidence against him was. This was because a sexual offence committed before 1 May was an offence under the old law, but an offence committed on or after that date was a different offence under the new law. For example, an assault might either be indecent assault under the 1956 Act, or the new offence of sexual assault under the 2003 Act, depending on when it happened, but it could not be both. If the prosecution could not prove beyond reasonable doubt which offence had been committed, then the defendant could not be convicted of either.

The Court of Appeal first dealt with this problem in December 2005, when the prosecution appealed against the decision of a judge to order a jury to acquit a defendant for precisely that reason. Dismissing the appeal, Lord Justice Rose said: "If a history of criminal legislation ever comes to be written it is unlikely that 2003 will be identified as a year of exemplary skill in the annals of Parliamentary drafting."

This situation was not resolved until Parliament passed section 55 of the Violent Crime Reduction Act 2006 (which came into force in February 2007).

Extent and repeals
The Act applies to England and Wales only except for the provisions listed in s.142(2) of the Act which also apply to Northern Ireland and the provisions listed in s.142(3) of the Act which also apply to Scotland. The Act repealed the Sex Offenders Act 1997 in its entirety, and almost all of the Sexual Offences Act 1956, which until then had been the main legislation for sexual offences.