Other Offences

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Other Offences

1. Inciting, Grooming & Meeting Children
2. Causing or inciting a child to engage in sexual activity
3. Sexual activity with a person who has a mental disorder impeding choice.

Inciting, Grooming & Meeting Children

This type of offence usually involves the use of the internet. The growth of the internet over recent years has changed the way people communicate. Whilst it is easier to communicate, the quality of the communication is often degraded as people believe they become ‘anonymous’ and their alter egos take over from reality. Communicating with others in chatrooms may start innocently, but conversations and behaviour may evolve in a way that was not initially intended. This may easily reach the stage where criminal offences have taken place.

Offences of inciting or grooming may begin as a result of an undercover police ‘sting’ where a police officer pretends to be a child in a chatroom or other social media platform. The issue of entrapment will arise where an undercover police officer has appeared to encourage the behaviour which is being prosecuted.

For more information on sting operations and entrapment please refer to our section on police sting operations.

Cases may arise as a result of a suspicious parents or social workers who then contact the police, or as a result of a warning from a compromised website.

Relationships between children of a similar age are being misinterpreted by police and classed as a ‘grooming’ offence. Young people operating in compromised environments may be victims of grooming and, without realising it, be facilitating the sexual grooming of other young people on behalf of others. There may be a fine line between being a groomer and a victim, which is not understood by the police or the prosecution. These cases are never as straightforward as they seem.

The evidence

• Texts and emails. The written word can be misinterpreted. How often have you received or sent a text or email that has been misinterpreted? The absence of a comma can easily change the meaning of a sentence. The prosecution is likely to read the content in a way that supports the complainant. However, the defendant’s version of what the text or email actually means should be taken into account.
• Chatroom, video and social media conversations. The police will likely have seized the defendant’s computers. It should not be assumed that the accused person is responsible for the communication unless sole access to the computer has been admitted already, or unless forensic evidence points to and identifies a single user. The defence may also wish to forensically examine the computer.
  
• Gifts given to young people, especially to those on local authority care, such as cigarettes, alcohol and money are often viewed by the police as a sign of grooming.
  
• Arranging offences – fantasy and real intent. When the police or prosecution present evidence of an arrangement to meet, defence solicitors will need to consider whether there is in fact evidence of an arrangement and, if there is, whether the communication was fantasy with no real intent to meet (and that the meeting would never would have happened).
  

The Law

Grooming is not an offence on its own. To be guilty, a defendant must have met or communicated with a child on at least two occasions, and then travelled with the intention of meeting the child to commit a sexual offence, typically sexual assault or rape. The initial two or more contacts need not have been sexual, but the intention when travelling to meet the child must be sexual. The meeting itself need not take place and therefore travelling to a meeting is enough.

Surprisingly, the child need not even exist, as long as the defendant thinks he or she does exist. This allows for the possibility of a police ‘sting’. Please also refer to our section on police sting operations.

Causing or inciting a child to engage in sexual activity

First, where the defendant is over 18 years old.

If the child is under 13, it does not matter whether the adult knew the age of the child. If the child is under 16, the prosecution will need to prove that the adult did not reasonably believe the child was 16 or over. What is ‘reasonable’ will be determined by the jury applying an objective standard.

Second, where the defendant is under 18 years old.

If the child is under 13, the age of the defendant does not matter. An offence can be committed by a child even under the age of 13.

Abuse of trust

• Sexual activity with a child (s.16 Sexual Offences Act 2003)
  
• Causing or inciting a child to engage in sexual activity (s.17 Sexual Offences Act 2003)
  
• Sexual activity in the presence of a child (s.18 Sexual Offences Act 2003)
  
• Causing a child to watch a sexual act (s.19 Sexual Offences Act 2003.

The prosecution must prove that the person was in a position of trust. This means that the person must have responsibility for the care of a person under 18.

For an offence under s.16 (sexual activity with a child), the prosecution must prove that the defendant touched the young person sexually. Defence if the defendant reasonably believed the person to be 18 or over but it is up to the defendant to raise this defence. This defence is not available if the child was under 13.

For an offence under s.17 (causing or inciting a child to engage in sexual activity), the prosecution must prove the defendant caused or incited a child to engage in a sexual activity. This offence can arise when a person in a position of trust provides a young person in his or her care to another person. The person in a position of trust does not need to be there at the time of the sexual activity. An offence also arises if a person in a position of trust encourages a young person to do something sexual in his or her presence, even if there has been no physical contact.

These offences be dealt with in the Magistrates’ Court but most will be dealt with in the Crown Court. Maximum sentence is 5 years in prison.

Sexual activity with a person who has a mental disorder impeding choice

The prosecution must prove the defendant knew about the mental disorder and that it made the person unable to refuse. A mental disorder can include dementia and severe learning difficulties. For an offence, the mental disorder must impede choice.

There are three categories:

1. First, the mental functioning is so impaired that they are unable to refuse to be part of the sexual activity.
2. Second, the mental disorder makes the person open to ‘inducement, threat or deception’.
3. Third, the person has the capacity to agree to be involved in sexual activity, but is affected by a mental disorder and is dependent on a carer.

All the above types of complainant are regarded in law as being unable to refuse and therefore unable to give proper consent to sexual activity. Sexual activity involves touching of a sexual nature.