Sexual Offences Act 2003

AuthorArfan Khan
Date01 June 2004
DOI10.1350/jcla.68.3.220.34454
Publication Date01 June 2004
SubjectComment
JCL 68(3).doc..Comment .. Page220
COMMENT
Sexual Offences Act 2003
Arfan Khan*
In recent years, there has been growing awareness and concern over
cases of child sexual abuse and exploitation.1 These include child traf-
ficking,2 child sex tourism,3 child abuse images and grooming. In terms
of official recognition, these are relatively new risks to children. Govern-
ment, law enforcement and welfare agencies have responded by im-
plementing or advocating a plethora of policy and practice initiatives.4
The response from a UK perspective has concentrated upon sexual
abuse, especially those measures aimed at monitoring and restoring
foreign travel by convicted sex offenders. For example, under the Crimi-
nal Justice and Court Services Act 2000 offenders must notify the police
if they are travelling abroad for eight days or more.5 Crucially, a more
recent development has been the Sexual Offences Act 2003.6 The 2003
Act contains provisions for foreign travel banning orders, which prohibit
individuals from travelling to a specified country.7 A further order under
the Sexual Offences Act will require all those convicted of a sexual
offence to register when they come into the country.8 Although these
developments are a welcome change in that they recognise child abuse
is a major issue, certain provisions within the Act concerning the crim-
inalisation of all sexual contact between under 13-year-olds and the
grooming of the children are problematical. So too are issues surround-
ing legislative drafting. These areas of law are examined below and,
where appropriate, legal reforms are suggested.
Sexual activity between minors
When viewed in conjunction with ss 9–12, the effect of s. 13 of the
Sexual Offences Act 2003 is that any form of sexual contact between
young people aged under 13 would be an offence and punishable with
* Barrister, Lincoln’s Inn.
1 For general articles on this topic, see M. Waites, ‘Adult Sexual Abuse of a Child’
(2002) 152 NLJ 7047; A. A. Gillespie, ‘Children, Chatrooms and the Law’ [2001]
Crim LR 435; A. Levy QC, ‘Trafficking in Children’, The Times (7 September 1999)
Supplement, 3; UNICEF, End Child Exploitation: Stop the Traffic (2003), available at
www.endchildexploitation.org.uk; J. Seabrook, No Hiding Place: Child Sex Tourism
and the Role of Extraterritorial Legislation
, 2nd edn (Zed Books: 2000).
2 See publications cited above n. 1.
3 Above n. 1.
4 Department of Health, National Plans for Safeguarding Children from Commercial Sexual
Exploitation (2001).
5 See the Criminal Justice and Court Services Act 2000, Sched. 5.
6 The Sexual Offences Act 2003 received Royal Assent on 20 November 2003.
7 See Part 2 of the Sexual Offences Act 2003.
8 Ibid.
220

Sexual Offences Act 2003
up to five years’ imprisonment.9 The rationale behind the introduction
of such a provision is to safeguard vulnerable children from sexual abuse
and exploitation and seems to be in accordance with the Appollian
concept of childhood, which presents children as generally pure, vir-
tuous and innocent.10
The question that arises, however, is whether in implementing such a
provision, the criminal law strikes an appropriate balance between
protecting children from sexual abuse and exploitation, on the one
hand, and permitting the sexual expression of young persons as they
proceed through to adulthood, on the other.
It might be argued that the 2003 Act, when in force, fails to strike
such a balance for two major reasons. First, the provision in question is
draconian in that it prohibits sexual contact between young siblings or
friends, which according to Bennion is ‘within the bounds or normal
family life’.11 Secondly, it fails to take into account the willingness, not to
say pre-preparedness, both physiologically and emotionally, of many
boys and girls under that age for sexual experience. That this is the case
is amply demonstrated by the fact that recent figures from the National
Survey of Sexual Attitudes and Lifestyles in Britain show that a quarter
of women and nearly a third of men in the current 16–44 age group had
sex under the age of 16.12 The latest figures available on the average age
of first sexual experience show that it is now 14 for girls and 13 for
boys.13
These arguments, however, exaggerate the alternative: s. 13 does not
prohibit sexual initiation, but rather delays sexual contact between
pubescents while allowing it at a later stage in life. Furthermore, pub-
escents might not have the experience or maturity to make decisions in
their own best interest about their sexuality. For example, in 1978, the
Law Reform Commission of Canada stated that because under 14-year-
olds may not have the experience or the maturity to make decisions in
their own best interests with regard to their own sexuality, a case can
reasonably be made to prevent their exposure to...

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