38 Care workers: sexual activity with a person with a mental disorder
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B’s care in a way that falls within section 42.
(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.
(3) A person guilty of an offence under this section, if the touching involved—
(a) penetration of B’s anus or vagina with a part of A’s body or anything else,
(b) penetration of B’s mouth with A’s penis,
(c) penetration of A’s anus or vagina with a part of B’s body, or
(d) penetration of A’s mouth with B’s penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless subsection (3) applies, 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 10 years.
39 Care workers: causing or inciting sexual activity
(1) A person (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) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B’s care in a way that falls within section 42.
(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.
(3) A person guilty of an offence under this section, if the activity caused or incited involved—
(a) penetration of B’s anus or vagina,
(b) penetration of B’s mouth with a person’s penis,
(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or
(d) penetration of a person’s mouth with B’s penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless subsection (3) applies, 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 10 years.
40 Care workers: sexual activity in the presence of a person with a mental disorder
(1) A person (A) commits an offence if—
(a) he intentionally engages in an activity,
(b) the activity is sexual,
(c) for the purpose of obtaining sexual gratification, he engages in it—
(i) when another person (B) is present or is in a place from which A can be observed, and
(ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d) B has a mental disorder,
(e) A knows or could reasonably be expected to know that B has a mental disorder, and
(f) A is involved in B’s care in a way that falls within section 42.
(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.
(3) 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 7 years.
41 Care workers: causing a person with a mental disorder to watch a sexual act
(1) A person (A) commits an offence if—
(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,
(b) the activity is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B’s care in a way that falls within section 42.
(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.
(3) 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 7 years.
(1) For the purposes of sections 38 to 41, a person (A) is involved in the care of another person (B) in a way that falls within this section if any of subsections (2) to (4) applies.
(2) This subsection applies if—
(a) B is accommodated and cared for in a care home, community home, voluntary home , children’s home, or premises in Wales at which a secure accommodation service is provided, and
(b) A has functions to perform ... in the course of employment in the home or the premises which have brought him or are likely to bring him into regular face to face contact with B.
(3) This subsection applies if B is a patient for whom services are provided—
(a) by a National Health Service body or an independent medical agency;
(b) in an independent hospital; or
(c) in Wales, in an independent clinic,
and A has functions to perform for the body or agency or in the hospital or clinic in the course of employment which have brought A or are likely to bring A into regular face to face contact with B.
(4) This subsection applies if A—
(a) is, whether or not in the course of employment, a provider of care, assistance or services to B in connection with B’s mental disorder, and
(b) as such, has had or is likely to have regular face to face contact with B.
(5) In this section—
“care home” means—
an establishment in England which is a care home for the purposes of the Care Standards Act 2000 (c. 14); and
a place in Wales at which a care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided wholly or mainly to persons aged 18 or over;
“children’s home”—
has the meaning given by section 1 of the Care Standards Act 2000 in relation to a children’s home in England, and
means a place in Wales at which a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided wholly or mainly to persons under the age of 18;
“community home” has the meaning given by section 53 of the Children Act 1989 (c. 41);
“employment” means any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract;
“independent clinic” has the meaning given by section 2 of the Care Standards Act 2000;
“independent hospital”—
in England, means—
a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section; or
any other establishment in which any of the services listed in section 22(6) are provided and which is not a health service hospital as so defined; and
in Wales, has the meaning given by section 2 of the Care Standards Act 2000;
“independent medical agency” means an undertaking (not being an independent hospital, or in Wales an independent clinic) which consists of or includes the provision of services by medical practitioners;
“National Health Service body” means—
a Local Health Board,
a National Health Service trust,
the Secretary of State in relation to the exercise of functions under section 2A or 2B of, or paragraph 7C, 8 or 12 of Schedule 1 to, the National Health Service Act 2006,
a local authority in relation to the exercise of functions under section 2B or 111 of, or any of paragraphs 1 to 7B, or 13 of Schedule 1 to, the National Health Service Act 2006,
...
a Special Health Authority;
“secure accommodation service” has the meaning given in Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016;
“voluntary home” has the meaning given by section 60(3) of the Children Act 1989.
(6) In subsection (5), in the definition of “independent medical agency”, “undertaking” includes any business or profession and—
(a) in relation to a public or local authority, includes the exercise of any functions of that authority; and
(b) in relation to any other body of persons, whether corporate or unincorporate, includes any of the activities of that body.
43 Sections 38 to 41: exception for spouses and civil partners
(1) Conduct by a person (A) which would otherwise be an offence under any of sections 38 to 41 against another person (B) is not an offence under that section if at the time—
(a) B is 16 or over, and
(b) A and B are lawfully married or civil partners of each other.
(2) In proceedings for such an offence it is for the defendant to prove that A and B were at the time lawfully married or civil partners of each other.
44 Sections 38 to 41: sexual relationships which pre-date care relationships
(1) Conduct by a person (A) which would otherwise be an offence under any of sections 38 to 41 against another person (B) is not an offence under that section if, immediately before A became involved in B’s care in a way that falls within section 42, a sexual relationship existed between A and B.
(2) Subsection (1) does not apply if at that time sexual intercourse between A and B would have been unlawful.
(3) In proceedings for an offence under any of sections 38 to 41 it is for the defendant to prove that such a relationship existed at that time.
(1) The Protection of Children Act 1978 (c. 37) (which makes provision about indecent photographs of persons under 16) is amended as follows.
(2) In section 2(3) (evidence) and section 7(6) (meaning of “child”), for “16” substitute “ 18 ”.
(3) After section 1 insert—
Marriage and other relationships
1A (1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a) were married, or
(b) lived together as partners in an enduring family relationship.
(2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a) were married, or
(b) lived together as partners in an enduring family relationship.
(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.
(4) In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.
(5) In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.
(6) In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both—
(a) as to whether the child consented to the photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, and
(b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child,
the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.
(4) After section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child) insert—
Marriage and other relationships
160A (1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a) were married, or
(b) lived together as partners in an enduring family relationship.
(2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a) were married, or
(b) lived together as partners in an enduring family relationship.
(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.
(4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.
(1) After section 1A of the Protection of Children Act 1978 (c. 37) insert—
Exception for criminal proceedings, investigations etc.
1B (1) In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—
(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,
(b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or
(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.
(2) In this section “GCHQ” has the same meaning as in the Intelligence Services Act 1994.
(2) After Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) insert—
Exception for criminal proceedings, investigations etc.
3A (1) In proceedings for an offence under Article 3(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—
(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,
(b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or
(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.
(2) In this Article “GCHQ” has the same meaning as in the Intelligence Services Act 1994.
(1) A person (A) commits an offence if—
(a) he intentionally obtains for himself the sexual services of another person (B),
(b) before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment, and
(c) 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) In this section, “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.
(3) A person guilty of an offence under this section against a person under 13, where subsection (6) applies, is liable on conviction on indictment to imprisonment for life.
(4) Unless subsection (3) applies, a person guilty of an offence under this section against a person under 16 is liable—
(a) where subsection (6) applies, on conviction on indictment, to imprisonment for a term not exceeding 14 years;
(b) in any other case—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(ii) on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(5) Unless subsection (3) or (4) applies, 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 7 years.
(6) This subsection applies where the offence involved—
(a) penetration of B’s anus or vagina with a part of A’s body or anything else,
(b) penetration of B’s mouth with A’s penis,
(c) penetration of A’s anus or vagina with a part of B’s body or by B with anything else, or
(d) penetration of A’s mouth with B’s penis.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48 Causing or inciting sexual exploitation of a child
(1) A person (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to be sexually exploited in any part of the world, and
(b) 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) 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 14 years.
49 Controlling a child in relation to sexual exploitation
(1) A person (A) commits an offence if—
(a) he intentionally controls any of the activities of another person (B) relating to B’s sexual exploitation in any part of the world, and
(b) 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) 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 14 years.
50 Arranging or facilitating sexual exploitation of a child
(1) A person (A) commits an offence if—
(a) he intentionally arranges or facilitates the sexual exploitation in any part of the world of another person (B), and
(b) 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) 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 14 years.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) For the purposes of sections 48 to 50, a person (B) is sexually exploited if—
(a) on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person, or
(b) an indecent image of B is recorded or streamed or otherwise transmitted ;
and “sexual exploitation” is to be interpreted accordingly.
(3) In subsection (2), “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.
(1) It is an offence for a person in a street or public place to solicit another (B) for the purpose of obtaining B's sexual services as a prostitute.
(2) The reference to a person in a street or public place includes a person in a vehicle in a street or public place.
(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) In this section “street” has the meaning given by section 1(4) of the Street Offences Act 1959.
(1) A person commits an offence if—
(a) he intentionally causes or incites another person to become a prostitute in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.
(2) 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 7 years.
(1) A person commits an offence if—
(a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.
(2) 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 7 years.
53A Paying for sexual services of a prostitute subjected to force etc.
(1) A person (A) commits an offence if—
(a) A makes or promises payment for the sexual services of a prostitute (B),
(b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and
(c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).
(2) The following are irrelevant—
(a) where in the world the sexual services are to be provided and whether those services are provided,
(b) whether A is, or ought to be, aware that C has engaged in exploitative conduct.
(3) C engages in exploitative conduct if—
(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or
(b) C practises any form of deception.
(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) In sections 52, 53 and 53A, “gain” means—
(a) any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount; or
(b) the goodwill of any person which is or appears likely, in time, to bring financial advantage.
(2) In sections 51A, 52, 53 and 53A “prostitute” means a person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment to A or a third person; and “prostitution” is to be interpreted accordingly.
(3) In subsection (2) and section 53A, “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.
55 Penalties for keeping a brothel used for prostitution
(1) The Sexual Offences Act 1956 (c. 69) is amended as follows.
(2) After section 33 insert—
Keeping a brothel used for prostitution
33A (1) It is an offence for a person to keep, or to manage, or act or assist in the management of, a brothel to which people resort for practices involving prostitution (whether or not also for other practices).
(2) In this section “prostitution” has the meaning given by section 51(2) of the Sexual Offences Act 2003.
(3) In Schedule 2 (mode of prosecution, punishment etc.), after paragraph 33 insert (as a paragraph with no entry in the fourth column)—
33A | Keeping a brothel used for prostitution (section 33A). | (i) on indictment (ii) summarily | Seven years Six months, or the statutory maximum, or both.
(1) A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B)—
(a) knowing that B does not consent, and
(b) with the intention of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B.
(2) 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 10 years.
62 Committing an offence with intent to commit a sexual offence
(1) A person commits an offence under this section if he commits any offence with the intention of committing a relevant sexual offence.
(2) In this section, “relevant sexual offence” means any offence under this Part (including an offence of aiding, abetting, counselling or procuring such an offence).
(3) A person guilty of an offence under this section is liable on conviction on indictment, where the offence is committed by kidnapping or false imprisonment, to imprisonment for life.
(4) Unless subsection (3) applies, 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 10 years.
63 Trespass with intent to commit a sexual offence
(1) A person commits an offence if—
(a) he is a trespasser on any premises,
(b) he intends to commit a relevant sexual offence on the premises, and
(c) he knows that, or is reckless as to whether, he is a trespasser.
(2) In this section—
“premises” includes a structure or part of a structure;
“relevant sexual offence” has the same meaning as in section 62;
“structure” includes a tent, vehicle or vessel or other temporary or movable structure.
(3) 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 10 years.
(1) A person aged 16 or over (A) (subject to subsection (3A)) commits an offence if—
(a) he intentionally penetrates another person’s vagina or anus with a part of his body or anything else, or penetrates another person’s mouth with his penis,
(b) the penetration is sexual,
(c) the other person (B) is aged 18 or over,
(d) A is related to B in a way mentioned in subsection (2), and
(e) A knows or could reasonably be expected to know that he is related to B in that way.
(2) The ways that A may be related to B are as parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
(3) In subsection (2)—
(za) “parent” includes an adoptive parent;
(zb) “child” includes an adopted person within the meaning of Chapter 4 of Part 1 of the Adoption and Children Act 2002;
(a) “uncle” means the brother of a person’s parent, and “aunt” has a corresponding meaning;
(b) “nephew” means the child of a person’s brother or sister, and “niece” has a corresponding meaning.
(3A) Where subsection (1) applies in a case where A is related to B as B's child by virtue of subsection (3)(zb), A does not commit an offence under this section unless A is 18 or over.
(4) Where in proceedings for an offence under this section it is proved that the defendant was related to the other person in any of those ways, it is to be taken that the defendant knew or could reasonably have been expected to know that he was related in that way unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that he was.
(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 2 years.
(6) Nothing in—
(a) section 47 of the Adoption Act 1976 (which disapplies the status provisions in section 39 of that Act for the purposes of this section in relation to adoptions before 30 December 2005), or
(b) section 74 of the Adoption and Children Act 2002 (which disapplies the status provisions in section 67 of that Act for those purposes in relation to adoptions on or after that date),
is to be read as preventing the application of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 for the purposes of subsection (3)(za) and (zb) above.
65 Sex with an adult relative: consenting to penetration
(1) A person aged 16 or over (A) (subject to subsection (3A)) commits an offence if—
(a) another person (B) penetrates A’s vagina or anus with a part of B’s body or anything else, or penetrates A’s mouth with B’s penis,
(b) A consents to the penetration,
(c) the penetration is sexual,
(d) B is aged 18 or over,
(e) A is related to B in a way mentioned in subsection (2), and
(f) A knows or could reasonably be expected to know that he is related to B in that way.
(2) The ways that A may be related to B are as parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
(3) In subsection (2)—
(za) “parent” includes an adoptive parent;
(zb) “child” includes an adopted person within the meaning of Chapter 4 of Part 1 of the Adoption and Children Act 2002;
(a) “uncle” means the brother of a person’s parent, and “aunt” has a corresponding meaning;
(b) “nephew” means the child of a person’s brother or sister, and “niece” has a corresponding meaning.
(3A) Where subsection (1) applies in a case where A is related to B as B's child by virtue of subsection (3)(zb), A does not commit an offence under this section unless A is 18 or over.
(4) Where in proceedings for an offence under this section it is proved that the defendant was related to the other person in any of those ways, it is to be taken that the defendant knew or could reasonably have been expected to know that he was related in that way unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that he was.
(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 2 years.
(6) Nothing in—
(a) section 47 of the Adoption Act 1976 (which disapplies the status provisions in section 39 of that Act for the purposes of this section in relation to adoptions before 30 December 2005), or
(b) section 74 of the Adoption and Children Act 2002 (which disapplies the status provisions in section 67 of that Act for those purposes in relation to adoptions on or after that date),
is to be read as preventing the application of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 for the purposes of subsection (3)(za) and (zb) above.
(1) A person (A) who intentionally exposes A’s genitals commits an offence if—
(a) A intends that someone will see the genitals and be caused alarm, distress or humiliation, or
(b) A exposes the genitals for the purpose of obtaining sexual gratification and does so—
(i) with the intention that someone will see them, and
(ii) being reckless as to whether someone who sees them will be caused alarm, distress or humiliation.
(1A) But where A intends only that a particular person, or particular persons, will see A’s genitals, A does not commit an offence by virtue of paragraph (b) of subsection (1) unless A is reckless as to whether that person, or at least one of those persons, will be caused alarm, distress or humiliation.
(2) 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 2 years.
(1) A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if—
(a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or
(b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation.
(2) References to sending or giving such a photograph or film to another person include, in particular—
(a) sending it to another person by any means, electronically or otherwise,
(b) showing it to another person, and
(c) placing it for a particular person to find.
(3) “Photograph” includes the negative as well as the positive version.
(4) “Film” means a moving image.
(5) References to a photograph or film also include—
(a) an image, whether made or altered by computer graphics or in any other way, which appears to be a photograph or film,
(b) a copy of a photograph, film or image within paragraph (a), and
(c) data stored by any means which is capable of conversion into a photograph, film or image within paragraph (a).
(6) A person who commits an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);
(b) on conviction on indictment, to imprisonment for a term not exceeding two years.
66B Sharing or threatening to share intimate photograph or film
(1) A person (A) commits an offence if—
(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,
(b) B does not consent to the sharing of the photograph or film, and
(c) A does not reasonably believe that B consents.
(2) A person (A) commits an offence if—
(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,
(b) A does so with the intention of causing B alarm, distress or humiliation, and
(c) B does not consent to the sharing of the photograph or film.
(3) A person (A) commits an offence if—
(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,
(b) A does so for the purpose of A or another person obtaining sexual gratification,
(c) B does not consent to the sharing of the photograph or film, and
(d) A does not reasonably believe that B consents.
(4) A person (A) commits an offence if—
(a) A threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state, and
(b) A does so—
(i) with the intention that B or another person who knows B will fear that the threat will be carried out, or
(ii) being reckless as to whether B or another person who knows B will fear that the threat will be carried out.
(5) Subsections (1) to (4) are subject to section 66C (exemptions).
(6) For the purposes of subsections (1) to (3) and section 66C(3)(b)—
(a) “consent” to the sharing of a photograph or film includes general consent covering the particular act of sharing as well as specific consent to the particular act of sharing, and
(b) whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents.
(7) Where a person is charged with an offence under subsection (4), it is not necessary for the prosecution to prove—
(a) that the photograph or film mentioned in the threat exists, or
(b) if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state.
(8) It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for sharing the photograph or film.
(9) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).
(10) A person who commits an offence under subsection (2), (3) or (4) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
(11) In subsection (9) “the maximum term for summary offences” means—
(a) if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, six months;
(b) if the offence is committed after that time, 51 weeks.
(12) If on the trial of a person charged with an offence under subsection (2) or (3) a magistrates’ court or jury finds the person not guilty of the offence charged, the magistrates’ court or jury may find the person guilty of an offence under subsection (1).
(13) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (12) convicted before it of an offence under subsection (1) as a magistrates’ court would have on convicting the person of the offence.
66C Sharing or threatening to share intimate photograph or film: exemptions
(1) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—
(a) the photograph or film was taken in a place to which the public or a section of the public had or were permitted to have access (whether on payment or otherwise),
(b) B had no reasonable expectation of privacy from the photograph or film being taken, and
(c) B was, or A reasonably believes that B was, in the intimate state voluntarily.
(2) For the purposes of subsection (1)(b), whether a person had a reasonable expectation of privacy from a photograph or film being taken is to be determined by reference to the circumstances that the person sharing the photograph or film reasonably believes to have existed at the time the photograph or film was taken.
(3) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—
(a) the photograph or film had, or A reasonably believes that the photograph or film had, been previously publicly shared, and
(b) B had, or A reasonably believes that B had, consented to the previous sharing.
(4) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1) if—
(a) B is a person under 16,
(b) B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film, and
(c) the photograph or film is shared—
(i) with a healthcare professional acting in that capacity, or
(ii) otherwise in connection with the care or treatment of B by a healthcare professional.
(5) A person who shares a photograph or film which shows, or appears to show, a child in an intimate state does not commit an offence under section 66B(1) if the photograph or film is of a kind ordinarily shared between family and friends.
(6) A person who threatens to share a photograph or film which shows, or appears to show, another person in an intimate state does not commit an offence under section 66B(4) if, by reason of this section, the person would not commit an offence under section 66B(1), (2) or (3) by sharing the photograph or film in the circumstances conveyed by the threat.
66D Sharing or threatening to share intimate photograph or film: interpretation
(1) This section applies for the purposes of sections 66B and 66C.
(2) A person “shares” something if the person, by any means, gives or shows it to another person or makes it available to another person.
(3) But a provider of an internet service by means of which a photograph or film is shared is not to be regarded as a person who shares it.
(4) “Photograph” and “film” have the same meaning as in section 66A (see subsections (3) to (5) of that section).
(5) Except where a photograph or film falls within subsection (8), a photograph or film shows, or appears to show, another person in an intimate state if it shows or appears to show—
(a) the person participating or engaging in an act which a reasonable person would consider to be a sexual act,
(b) the person doing a thing which a reasonable person would consider to be sexual,
(c) all or part of the person’s exposed genitals, buttocks or breasts,
(d) the person in an act of urination or defecation, or
(e) the person carrying out an act of personal care associated with the person’s urination, defecation or genital or anal discharge.
(6) For the purposes of subsection (5)(c) the reference to all or part of a person’s “exposed” genitals, buttocks or breasts includes—
(a) a reference to all or part of the person’s genitals, buttocks or breasts visible through wet or otherwise transparent clothing,
(b) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are covered only with underwear, and
(c) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are obscured, provided that the area obscured is similar to or smaller than an area that would typically be covered by underwear worn to cover a person’s genitals, buttocks or breasts (as the case may be).
(7) In subsection (6)(c) “obscured” means obscured by any means, other than by clothing that a person is wearing, including, in particular, by an object, by part of a person’s body or by digital alteration.
(8) A photograph or film falls within this subsection if (so far as it shows or appears to show a person in an intimate state) it shows or appears to show something, other than breastfeeding, that is of a kind ordinarily seen in public.
(9) For the purposes of subsection (8) “breastfeeding” includes the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding.