1. Passion Training & Consultancy Sex and the law Sarah Andrews Passion Training and Consultancy 01248 371900 sarah@passionconsultancy.org

2. Passion Training & Consultancy Sex and the law New legislation: Sexual Offences Act 2003 Working with young people: law and policy Sex education and the legacy of ‘Section 28’ The criminalisation of STI transmission

3. Passion Training & Consultancy The law and other rules Law: Criminal or civil; statute or case; national; religious Policy and guidelines: professional; national; local; house rules Custom and practice: staff working methods and belief systems; client expectations We all work to a combination of all three types of rules. Sometimes they overlap, but they can be in conflict.

4. Passion Training & Consultancy Sexual Offences Act 2003 Offences listed by section 1: Rape 2-3: Assault by penetration and sexual assault 4: Causing sexual activity without consent 5-8: Rape and other offences against under 13s 9-15: Child sex offences 16-24: Abuse of a position of trust 25-29: Familial child sex offences 30-33: Offences against persons with a mental disorder impeding choice 34-37: Inducements to persons with mental disorder 38-44: Care workers for persons with mental disorder

5. Passion Training & Consultancy Sexual offences continued 45-46: Indecent photographs of children 47-56: Prostitution and child pornography 57-60: Trafficking for sexual exploitation 61-63: Preparatory offences (drugging, trespass) 64-65: Sex with an adult relative 66-71: Other offences (exposure, voyeurism, animals, corpses, sex in public lavatories) 72: Offences outside the UK 73-79: Supplementary and general (definitions etc, e.g. ‘consent’, ‘sexual’, ‘mental disorder’)

6. Passion Training & Consultancy Child sex offences 9: (Adult 18+) Sexual activity with a child (13-15) 10: Causing or inciting a child to engage in sexual activity 11: Engaging in sexual activity in presence of a child (for own gratification) 12: Causing a child to watch a sexual act (for own gratification) 13: Child sexual offences (above) committed by children or young persons (under 18) 14: Arranging or facilitating commission of a child sex offence 15: Meeting a child following sexual grooming etc.

7. Passion Training & Consultancy Sexual health advice and treatment Those who act with the purpose of protecting a child from sexually transmitted infection, protecting the physical safety of a child, or preventing a child from becoming pregnant, are not liable to prosecution. Amendment to 14 – Arranging or facilitating commission of a child sex offence

8. Passion Training & Consultancy Advice on the emotional side of sex ‘Promoting the child’s emotional well-being by the giving of advice’ was added as a further exception to 14 - Arranging or facilitating commission of a child sex offence This protects agony aunts, counsellors, teachers, youth workers etc.

9. Passion Training & Consultancy Mental disorder: sexual offences Defined in the Mental Health Act 1983 as –‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’ Mental disorder impeding choice: similar list of offences to those against children Any mental disorder: protection from care workers, similar to children offences Any mental disorder: protection against being bribed, tricked or threatened into sex

10. Passion Training & Consultancy Definition of ‘Sexual’ ‘penetration, touching or any other activity is sexual if a reasonable person would consider that— (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual,or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.’

11. Passion Training & Consultancy Definition of consent ‘A person consents if he agrees by choice, and has the freedom and capacity to make that choice’ The test should be whether the complainant was in a position to make his own decision and being able to make the choice between agreeing and refusing. (A more detailed description is given in the Act)

12. Passion Training & Consultancy Law and policy: conflicting advice Some recent local protocols say report any sexually active under 13s Some bodies have demanded reporting of all sexually active under 16s BMA, RCN, fpa etc all support leaving it to professional judgement, case by case Age limits bring the risk of under- and over-reporting, both with serious consequences

13. Passion Training & Consultancy Protecting children Public enquiry reports (Laming 2003, Bichard 2004) have recommended reporting all crimes against children But Bichard has clarified there was no intention to cover non-abusive relationships or remove local discretion Existing guidance from TPU says to use discretion and ‘weigh the circumstances of each individual case’ in decisions to report Home Office SOA guidance states that ‘young people, including those under 13, will continue to have the right to confidential advice on contraception, condoms, pregnancy and abortion’

14. Passion Training & Consultancy Legal issues for service providers Is the sex I’ve just heard about legal? –Under 16? Did not/could not consent? –This question is the least important for services Am I legally allowed to give advice or treatment? –Fraser guidelines if under 16 –Condom provision alone is not advice or treatment Is there abuse or exploitation involved? –Follow child protection procedures if under 18 –Duty of care if mental disorder Keep these 3 questions separate

15. Passion Training & Consultancy Fraser guidelines A doctor or other professional can advise or treat someone under 16 without parents’ knowledge or consent if: (all 5 must apply) the young person will understand the advice s/he can’t be persuaded to inform parents s/he is likely to have sex anyway his/her physical or mental health would suffer without the advice or treatment his/her best interests require it Gillick v Wisbech Area Health Authority (1985)

16. Passion Training & Consultancy Section 28 and its legacy S28 Local Government Act 1986 Prevented local government employees from ‘promotion of homosexuality as a pretended family relationship…except for the purpose of preventing disease’ –Never applied to schools, although it had been intended to do so –Was never used for a prosecution –This section has now been repealed –Still affecting practice

17. Passion Training & Consultancy Criminalisation of STI transmission 4 successful prosecutions in England since 2003: all male foreign nationals with HIV Used Offences Against the Person Act 1861: s20 recklessly inflicting grievous bodily harm Previous failed prosecutions re herpes & HepB In 1998 a new offence proposed re intentional transmission of disease but not actioned Possible effects on: willingness to test; messages about responsibility; research investigations

18. Passion Training & Consultancy More information Working within the Sexual Offences Act 2003 www.homeoffice.gov.uk www.homeoffice.gov.uk Enabling young people to access contraceptive and sexual health information and advice: legal and policy framework TPU 2004 www.teenagepregnancyunit.gov.uk www.teenagepregnancyunit.gov.uk Criminalisation of HIV Transmission: NAT Policy Update 2005 National AIDS Trust www.nat.org.uk www.nat.org.uk Statement on under-16s and sexual activity www.fpa.org.uk www.fpa.org.uk