Sexual Conduct with a Child or Young Person Flashcards
Consent of a child
To determine whether the defendant is liable under s128 or s132 in situations where a child is apparently “consenting”, distinction must be drawn between a child who is simply compliant and one who is truly consenting based on a full understanding of the act.
There is no statutory “cut off” age below which a child is deemed incapable of consenting, and therefore whether a child is truly consenting or not will depend on all the circumstances of the case.
Consent is no defence
Even in the unlikely event that a child’s consent is sufficient to provide a defence to sexual violation, that consent is no defence to a charge of sexual conduct with a child under 12 – see s132(5).
Proof of age
For the sexual offences covered in sections 132 and 134, the age of the complainant is significant.
Where age is an essential element of an offence, the Crown must prove the complainant’s age at the time of the alleged offence, using the best evidence available to do so.
In practice this generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.
Ideally the independent evidence will be that of a parent, but that will not always be possible.
Indecent act
Section 132(3) deals with all forms of sexual activity with a child other than those that involve sexual connection as defined in s2.
An ‘indecent act’ is generally accepted to be an act accompanied by circumstances of indecency.
If such an act is done with the consent of the child, it is immaterial whether:
* the offender does the act on the child
* the child does the act on the offender
* the act is mutual.
Where the act is non-consensual, or where the child’s consent is not legally valid, the offender has committed an indecent assault. This is included within the definition of indecent act under s132(6)(b).
When precise age of complainant in doubt
Although s134 is primarily aimed at boys and girls aged 12–15 years, it overlaps with s132 in that it covers any person under the age of 16 years. This therefore extends the section to also cover children under 12.
So, to avoid the risk of acquittal in cases where the precise age of the complainant at the time is in doubt, charges may be filed under both ss132 and 134, or if necessary under s134 only.
Mistake as to age no defence for child
Under s132(4) it is no defence to a charge of sexual conduct with a child that the offender believed the complainant was 12 years of age or over.
Defence young persons
It may provide a defence to a charge under s134 if the defendant proves that before the time of the sexual activity:
* they had taken reasonable steps to ascertain that the young person was of or over the age of 16, and
* and at the time of the sexual activity they believed on reasonable grounds that the young person was of or over the age of 16, and
* the young person consented.
Where both parties are aged under 16, they both commit the offence. However, if one party is 15 and the other is 16, only the 16-year-old can be charged (s134(5)).
Reasonable steps
The defendant must show what steps they took to ascertain the young person’s age, and satisfy the court that these steps were all that could be reasonably required of them in the circumstances.
The wider the age and maturity gap between the defendant and the young person, the harder it will be to establish this defence.
