Sexual harm and intimate relationship violence

Published date01 June 2022
Date01 June 2022
Subject MatterIn court
In court
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform senten-
cing and early release.
Sexual harm and intimate relationship violence
Sentencing intended but unperpetrated sexual abuse of children
Dealing with six unrelated cases together, the Court of Appeal has provided clarif‌i-
cation on the proper approach to be adopted when sentencing certain offences
against children under the Sexual Offences Act 2003 (SOA) in instances where
no sexual activity takes place, either because the child is f‌ictitious but the offender
believed the intended victim was real, or because the offender failed to persuade
the child to engage in sexual activity or was thwarted. Previous decisions by the
Appeal Court had not been consistent as regards whether the harm element of the
crime should be evaluated for the purposes of applying the relevant Sentencing
Guideline (Sexual Offences, 2013) as intrinsically within the lowest category
(Category 3: other sexual activity), given that the harm could not or did not
happen, or in a higher category (Category 1 or 2: penetration or touching of
naked genitalia/breasts) on the basis of what the offender had intended.
In revisiting the uncertainty, the Court tookas starting point and central to the issue
the applicationof the fundamental tenet in the SentencingAct 2020 s63 (formerly CJA
2003 s143(1))that where a court is considering the seriousnessof any offence, it must
consider (a) the offenders culpability in committing the offence, and (b) any harm
which the offence (i) caused, (ii) was intended to cause, or (iii) might foreseeably
have caused. It follows that when an offender encourages a child, real or f‌ictitious,
to engage in sexual activity but without that activity taking place, or attempts to
engage in sexual activity with a child, harm should be assessed by reference to the
defendants state of mind and intentions. The Court expressed its expectation that
This decision will end the rigid distinction between those cases where particular sexual
activity takes place and those cases where the defendant, for instance, does everything
he is able to bring that sexual activity about but for reasons beyond his control it does
not materialise. The harm should always be assessed in the f‌irst instance by reference
The Journal of Communit
and Criminal Justice
Probation Journal
2022, Vol. 69(2) 255269
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/02645505221093415

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