Offences Against Children
Sections 5 to 15 of the 2003 Act contain offences related to children, which are divided into two categories. Firstly, offences related to children under the age of 13 and secondly, offences related to children between 13 and 16 years old.
The first three sections (5,6 and 7) replicate sections 1,2 and 3 of SOA; namely, section 5 provides for the rape of a child under 13, section 6 is about assault of a child under 13 by penetration, and section 7 defines sexual assault of a child under 13. The major differences from the adult provisions are that there is no question of consent – a child under 13 years old is not considered by law to consent to any sexual activity – and there can be no reasonable belief in consent by the defendant. The offence is one of strict liability in relation to age. It is irrelevant whether the child consented or instigated the act, and it is also irrelevant how old the person looks.
The second category relates to children between the ages of 13-16, provided in sections 9-15. Under these offences, the defendant may raise the defence that they reasonably believe the child to be over 16 years old. What is considered reasonable is for the jury to decide.
Specifically, section 9 of the SOA 2003 provides:
“A person aged 18 or over (A) commits an offence if –
- he intentionally touches another person (B),
- the touching is sexual, and
- either –
B is under 16 and A does not reasonably believe that B is 16 or over, or
B is under 13.”