Public Protection and Safety: Sexual Offences (NI) Order 2008 PDF

Public Protection and Safety PPS04 Sexual Offences Introduction The Sexual Offences (NI) Order 2008 was approved by Parliament in June 2008 and the legislation came in to force in Northern Ireland on 2 February 2009. None of the offences in the Order apply retrospectively. Offences...

Public Protection and Safety PPS04 Sexual Offences Introduction The Sexual Offences (NI) Order 2008 was approved by Parliament in June 2008 and the legislation came in to force in Northern Ireland on 2 February 2009. None of the offences in the Order apply retrospectively. Offences which were committed prior to 2 February 2009 should be prosecuted under the legislation in force at the time the offence was committed. This ensures compliance with human rights. The Sexual Offences Order is divided as follows: Part 1 - Introduction Part 2 - Non-consensual sexual offences Part 3 - Sexual offences against children - Children under 13/Children under 16/ Children under 18 Part 4 - Sexual offences against a person with a mental disorder Part 5 - Prostitution offences Part 6 - Miscellaneous sexual offences Part 7 - General The aim of these notes is to enable you to identify the various sexual offences in the Sexual Offences (NI) Order 2008 and to understand you role when called upon to attend as first responders or investigate such offences. These notes are divided into three sub-sections: 1- Non-consensual sexual offences OFFICIAL [PUBLIC] Page 82 2- Other sexual offences 3- Responding to reports of sexual offences and recognising trauma (classroom based) Sections 1 and 2 contain the legislation, the meaning of terms, the elements which go to make up the offences, case examples and penalties etc. This information is contained within the Sexual Offences (NI) Order 2008 or speak to one of your trainers, who will be happy to provide assistance. Section 3 is covered in the classroom. It deals with police response to reports of sexual offences – how your attitudes and values might affect your response, how, in turn, your response might affect a victim, how a victim might be affected by trauma and how you can recognise the signs of trauma. Sexual offences against children will be contained in the child protection lesson notes PPS03 which should be read in conjunction with these notes. The Sexual Offences (NI) Order 2008 is written in a way which refers to the offender, ‘A’ committing an offence against the victim ’B’. In these notes we will use that format to maintain the offender as ‘A’ and the Victim as ‘B’. Meaning of Terms To understand and apply the Sexual Offences Order to allegations we must know the basic elements which are judged when applying the law. The meaning of the terms used will help you understand the various elements of the offences. Parts of a Body Includes references to a part surgically constructed. OFFICIAL [PUBLIC] Page 83 Penetration Penetration is a continuing act from entry to withdrawal. Image Means a moving or still image and includes an image produced by any means and where the context permits, a three-dimensional image. Mental Disorder Has the meaning, given by Article 3 of the Mental Health (NI) Order 1986. Touching Touching includes touching with: a. Any part of the body, b. Anything else, c. Through anything, And in particular includes touching amounting to penetration. Vagina Includes vulva. Consent Under Article 3 Sexual Offences (NI) Order 2008 A person consents if he agrees by choice and has the freedom and capacity to make that choice. NB: A person must have both capacity (age and understanding) and freedom (without any constraint) to agree to the activity by choice. A person may lack capacity to consent because they have, for example, a mental OFFICIAL [PUBLIC] Page 84  disorder or they are a young child. A person may not have freedom to consent because they are forced, for example, by violence or threats of violence. A child under 13 years does not, under any circumstances, have the legal capacity to consent to any form of sexual activity. Sexual Except for Article 75 (sexual activity in a public lavatory) Penetration, touching or any other activity is sexual if a reasonable person would consider: 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. Non-Consensual Sexual Offences Rape - Article 5 Sexual Offences (NI) Order 2008 Article 5.—(1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Articles 9 and 10 apply to an offence under this Article. OFFICIAL [PUBLIC] Page 85  (4) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life. NB: Either a male or female can be the victim of rape, but only a male can commit the offence of rape For each of the 4 non-consensual offences that you will examine in this module an offence is committed if the defendant does not reasonably believe that the complainant consented to the sexual act. Whether a defendant’s belief in consent is reasonable is to be determined by investigating all the circumstances, including what steps the defendant has taken to ascertain whether the complainant consents. Article 9 Evidential Presumptions about Consent - Sexual Offences (NI) Order 2008 Article 9.—(1) If in proceedings for an offence to which this Article applies it is proved— (a) that the defendant did the relevant act, (b) that any of the circumstances specified in paragraph (2) existed, and (c) that the defendant knew that those circumstances existed, The complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (2) The circumstances are that— (a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him; OFFICIAL [PUBLIC] Page 86  (b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person; (c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; (d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (e) because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented; (f) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. (3) In paragraph (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began. An easy way to remember: A- Asleep - the complainant was asleep or otherwise unconscious at the time. V- Violence -any person was, at the time of the relevant act or immediately before it began, using violence. O- Other person - any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person; I- Imprisoned - the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; D- Disability - because of the complainant’s physical disability. D- Drugged - any person had administered to or caused to be taken by the complainant. OFFICIAL [PUBLIC] Page 87 You may also need to consider a person in a domestic relationship who is the victim of coercive control (an offence under the Domestic Abuse and Civil Proceedings Act (NI) 2021) as this control may have an impact on their ability to consent to sexual activities. Explanation Where the prosecution proves that the defendant did a relevant act, that the circumstances described in paragraph (2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented. In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. In practice the evidence produced may be from evidence that the defendant himself gives in the witness box, or from evidence given on his behalf by a defence witness, or resulting from evidence given by the complainant during cross- examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, he will so direct; if not, he will direct the jury to find the defendant guilty. Article 10 Conclusive Presumptions about Consent - Sexual Offences (NI) Order 2008 10.—(1) If in proceedings for an offence to which this Article applies it is proved that the defendant did the relevant act and that any of the circumstances specified in paragraph (2) existed, it is to be conclusively presumed— (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are— (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; OFFICIAL [PUBLIC] Page 88  (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. Explanation This Article creates conclusive presumptions about lack of consent and the absence of belief in consent in situations where the defendant deceived the complainant into sexual activity. Paragraph (a) covers the situation where, for example, the defendant intentionally tells the complainant that digital penetration of her vagina is necessary for medical reasons when in fact it is for his sexual gratification. Paragraph (b) covers the situation where, for example, the defendant impersonates the complainant’s partner and thereby causes the complainant to consent to the relevant act. Where the prosecution prove that the defendant did a relevant act and that any of the circumstances described in paragraph (a & b) existed, it is conclusively presumed that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act. The defendant will therefore be convicted. Evidential and Conclusive Presumptions Apply to Articles 5-8 - Sexual Offences (NI) Order 2008 only, as these are the only offences within which consent plays a part. Relevant Act Relevant act under Rape Article 5 Sexual offenders (NI) Order 2008: The defendant intentionally penetrating, with his penis, the vagina, anus or mouth of another person (the complainant). OFFICIAL [PUBLIC] Page 89 Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant -subject to necessity criteria Important Point to Note Rape and rape of a child under 13 are the only gender specific offences because they relate to penetration by a penis. Only a man can commit these offences. All other offences in the Order are gender neutral and can be committed by a male or a female. Rape can be committed by penetration of the vagina, anus or mouth. As with all the offences the victim, B, can be male or female. Assault by penetration Article 6 Sexual Offences (NI) Order 2008 Article 6.— (1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else, (b) the penetration is sexual, (c) B does not consent to the penetration, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Articles 9 and 10 apply to an offence under this Article. (4) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. OFFICIAL [PUBLIC] Page 90 Example Article 6 covers the situation where a person intentionally penetrates the vagina or anus of another person. The offence is committed where the penetration is by a part of the body (for example, a finger) or anything else, (for example, a bottle). The penetration must be sexual so it excludes, for example, intimate searches and medical procedures. This offence can be committed by a male or female, against a male or female. Explanation of Terms Penetration It is not necessary for the victim to know, or explain what they were penetrated with. This means that the offence can be used in cases where, for example, the victim is a child, or a person with a learning disability, or a person who was blindfolded at the time of the alleged incident, and where the evidence is not clear enough to justify a prosecution for rape. Vagina Includes vulva. Part of the body References to parts of the body, includes a part of the body that has been surgically constructed (in particular through gender reassignment surgery). Sexual This is an objective test. There are two parts to the definition of ‘sexual’: Sexual because of its nature, e.g. sexual intercourse. The circumstances and/or purpose make it sexual, e.g. digital penetration of the vagina may be sexual or it may be carried out for a medical reason. The reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (e.g. a doctor’s surgery) and the purpose of any of the participants (if the doctor’s purpose is medical, the activity will not be sexual; if the doctor’s purpose is sexual, the activity also is likely to be sexual). OFFICIAL [PUBLIC] Page 91 Where the activity is, for example, oral sex, it seems likely be that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. (Article 4 Sexual Offences (NI) Order 2008) The effect of this is that obscure fetishes do not fall within the definition of sexual activity. e.g. The person who obtains sexual gratification from stealing women’s underwear from a washing line. Consent A person consents if he agrees by choice and has the freedom and capacity to make that choice. (Article 3 sexual offences (NI) Order 2008). Relevant Act Relevant act under Article 6 Sexual offenders (NI) Order 2008: The defendant intentionally penetrating, with a part of his body or anything else, the vagina or anus of another person (the complainant), where the penetration is sexual. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. Sexual Assault Article 7 Sexual Offences (NI) Order 2008 Article 7.—(1) A person (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Articles 9 and 10 apply to an offence under this Article. OFFICIAL [PUBLIC] Page 92  (4) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10yrs. Touching Touching includes touching – with any part of the body, with anything else, through anything, and in particular includes touching amounting to penetration. Example This could include where a person rubs up against someone’s private parts through the persons clothes for sexual gratification. Sexual Applies as for assault by penetration. Consent Applies as for assault by penetration. Evidential Presumptions about consent Applies as for assault by penetration Conclusive presumptions about Consent Applies as for assault by penetration, Relevant Act The defendant intentionally touching another person (the complainant), where the touching is sexual. OFFICIAL [PUBLIC] Page 93 Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant -subject to necessity criteria. Causing a person to engage in sexual activity without consent - Article 8 Sexual Offences (NI) Order 2008 Article 8.— (1) A person (A) commits an offence if— (a) he intentionally causes another person (B) to engage in an activity, (b) the activity is sexual, (c) B does not consent to engaging in the activity, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Articles 9 and 10 apply to an offence under this Article. (4) A person guilty of an offence under this Article, if the activity caused involved— (a) penetration of B's anus or vagina, (b) penetration of B's mouth with a person's penis, (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or (d) penetration of a person's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for life. (5) Unless paragraph (4) applies, a person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years. OFFICIAL [PUBLIC] Page 94 Example A may cause B to engage in sexual activity with A. An example of this would be where a woman compels a man to penetrate her. A could also force B to carry out a sexual act on B. An example is where an abuser makes his victim engage in masturbation involving only the victim. A forces B to engage in sexual activity with another person, whether that third party is a willing participant or another victim. An example of this would be where a man forces a woman to give oral sex to a fellow abuser, and of the latter, where a man forces two non- consenting women to touch one another in a sexual way. Sexual Applies as for assault by penetration. Consent Applies as for assault by Penetration. Evidential presumptions about consent Applies as for assault by penetration. Conclusive presumptions about consent Applies as for assault by penetration. Relevant Act The defendant intentionally causing another person (the complainant), to engage in an activity, where the activity is sexual. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. OFFICIAL [PUBLIC] Page 95 Other Sexual Offences Administering a substance with intent – Article 65 sexual offences (NI) Order 2008 Article 65.—(1) A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B)— (a) knowing that B does not consent, and (b) with the intention of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B. (2) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years. Example The offence is intended to cover use of so-called date rape drugs administered without the victim’s knowledge or consent, but would also cover the use of any other substance with the relevant intention. It would cover A ‘spiking’ B’s drinks with alcohol where B did not know he was consuming alcohol, but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew that he was consuming alcohol. The substance may be administered to B in any way, for example, in a drink (as in the example given above), by injection or by covering B’s face with a cloth impregnated with the substance. The offence applies both where A himself administers the substance to B, and where A causes the substance to be taken by B, for example where A persuades a friend (C) to administer a substance to B, so that A can have sex with B, because C knows B socially and can more easily slip the substance into B’s drink than A can. However, the intended sexual activity need not involve A. In the example given above it could be intended that C or any other person would have sex with B. OFFICIAL [PUBLIC] Page 96 Sexual The sexual activity in this offence could involve A having sexual intercourse with or masturbating B; could involve A causing B to commit a sexual act upon himself (for example, masturbation); or could involve B and a third party engaging in sexual activity together, regardless of whether the third party had administered the substance. Committing an Offence with Intent to Commit a Sexual Offence Article 66 Article 66.— (1) A person commits an offence under this Article if he commits any offence with the intention of committing a relevant sexual offence. (2) In this Article “relevant sexual offence” means any offence under— (a) this Order, (b) including an offence of aiding, abetting, counselling or procuring such an offence. (3) A person guilty of an offence under this Article— (a) where the offence is committed by kidnapping or false imprisonment, or (b) where— (i)the offence is committed by assault, and (ii)the intended relevant sexual offence is an offence under Article 5 or 6, is liable on conviction on indictment, to imprisonment for life. (4) Unless paragraph (3) applies, a person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years. OFFICIAL [PUBLIC] Page 97 Example A person assaults someone with the intention of raping them but the person runs away before the rape takes place, or a person kidnaps someone with the intention of sexually assaulting them but the police intervene and make an arrest. Where the sexual offence is also committed the person could, in principle, be prosecuted for this offence and the substantive sexual offence. Trespass with Intent to Commit a Sexual Offence Article 67 Sexual offences (NI) Order 2008 Article 67.—(1) A person commits an offence if— (a) he is a trespasser on any premises, (b) he intends to commit a relevant sexual offence on the premises, and (c) he knows that, or is reckless as to whether, he is a trespasser. (2) In this Article— “premises” includes a structure or part of a structure; “relevant sexual offence” has the same meaning as in Article 66; “structure” includes a tent, vehicle or vessel or other temporary or movable structure. (3) A person guilty of an offence under this Article is liable on conviction on indictment, where the intended relevant sexual offence is an offence under Article 5 or 6, to imprisonment for a term not exceeding 14 years. (4) Unless paragraph (3) applies, a person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years. OFFICIAL [PUBLIC] Page 98 Example This offence is intended to capture, for example, the situation where a person (A) enters a building owned by B, or goes into B’s garden or garage without B’s consent, and he intends to commit a sexual offence against the occupier. The offence applies regardless of whether or not the substantive sexual offence is committed. A will commit the offence if he has the intent to commit a relevant sexual offence at any time while he is a trespasser. The intent is likely to be inferred from what the defendant says or does to the intended victim (if there is one) or from items in possession of the defendant at the time he commits the trespass (for example, condoms, pornographic images, rope etc.) Trespasser A person is a trespasser if he is on premises without the owners/occupiers consent, or other lawful excuse. Premises Includes a structure or part of a structure - ‘structure’ includes a tent, vehicle, vessel or other temporary or movable structure. Relevant Sexual Offence Relevant sexual offence means any offence under the Sexual Offences (NI) 2008 order and includes an offence of aiding, abetting, counselling or procuring such an offence. It also includes the offences under trafficking for sexual exploitation in the Sexual Offences Act 2003. OFFICIAL [PUBLIC] Page 99 Sex with an Adult Relative Articles 68 and 69 Sexual Offences (NI) Order 2008 Article 68 Sexual Offences (NI) Order 2008 Article 68.—Sex with an adult relative: Penetration (1) A person aged 16 or over (A), subject to paragraph (4), commits an offence if— (a) he intentionally penetrates another person's vagina or anus with a part of his body or anything else, or penetrates another person's mouth with his penis, (b )the penetration is sexual, (c) the other person (B) is aged 18 or over, (d) A is related to B in a way mentioned in paragraph (2), and (e) A knows or could reasonably be expected to know that he is related to B in that way. (2) The ways that A may be related to B are as parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. (3) In paragraph (2)— (a) “parent” includes an adoptive parent; (b) “child” includes an adopted child within the meaning of Part 5 of the Adoption (Northern Ireland) Order 1987 (NI 22); (c) “uncle” means the brother of a person's parent, and “aunt” has a corresponding meaning; (d) “nephew” means the child of a person's brother or sister, and “niece” has a corresponding meaning. (4) Where paragraph (1) applies in a case where A is related to B as B's child by virtue of paragraph (3)(b), A does not commit an offence under this Article unless A is 18 or over. (5) Where in proceedings for an offence under this Article it is proved that the defendant was related to the other person in any of those ways, it is to be taken OFFICIAL [PUBLIC] Page 100  that the defendant knew or could reasonably be expected to know that he was related in that way unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that he was. Makes it an offence for a person over 16 to sexually penetrate a relative over 18. The person penetrating must know, or could reasonably be expected to know, that the other person is a relative. Article 68 Sexual Offences (NI) Order 2008 makes it an offence for a person over 16 to sexually penetrate a relative over 18. Article 69.—Sex with an adult relative: consenting to penetration 1) A person aged 16 or over (A), subject to paragraph (4), commits an offence if— (a) another person (B) penetrates A's vagina or anus with a part of B's body or anything else, or penetrates A's mouth with B's penis, (b) A consents to the penetration, (c) the penetration is sexual, (d) B is aged 18 or over, (e) A is related to B in a way mentioned in paragraph (2), and (f) A knows or could reasonably be expected to know that he is related to B in that way. (2) The ways that A may be related to B are as parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. (3) In paragraph (2)— (a)“parent” includes an adoptive parent; (b)“child” includes an adopted child within the meaning of Part 5 of the Adoption (Northern Ireland) Order 1987 (NI 22); (c)“uncle” means the brother of a person's parent, and “aunt” has a corresponding meaning; (d)“nephew” means the child of a person's brother or sister, and “niece” has a corresponding meaning. OFFICIAL [PUBLIC] Page 101 Article 69 Sexual Offences (NI) Order 2008 makes it an offence for a person over 16 to consent to being sexually penetrated by a relative over 18. The person consenting must know, or could reasonably be expected to know, that the other person is a relative. A person guilty of either Article 68/69 offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years. Part 3 of the Order contains the sexual offences against children and Articles 32 to 36 cover familial sexual offences against children under 18. Articles 68 and 69 relate to activities which continue to be sexual offences once the parties are adults. These offences prohibit any sexual penetrative acts between family members regardless of the gender or sexual orientation of the parties involved. Penetration Is intentional penetration of the relative’s vagina or anus with a part of his body or anything else, and penetration of the relative’s mouth with his penis. Sexual Has already been defined at Article 4 and the same meaning applies to these Articles. Relative Is a parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. ‘Parent’ includes adoptive parent. ‘Child’ includes an adoptive child. ‘Uncle’ is the brother of a person’s parent and aunt is the sister of a person’s parent (i.e. not an uncle/aunt through marriage). ‘Nephew/Niece’ is the child of a person’s brother or sister (again not simply through marriage). OFFICIAL [PUBLIC] Page 102 Except in the most unusual circumstances, a person can reasonably be expected to be aware of such close family relationships. It will not be an offence under either of these Articles for an adoptive brother and sister over 18 years to engage in sexual intercourse. Exposure Article 70 Sexual Offences (NI) Order 2008 Article 70.—(1) A person commits an offence if— (a) he intentionally exposes his genitals, and (b) he intends that someone will see them and be caused alarm or distress. (2) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years. This Article requires that the person intentionally exposes their genitals, intending that someone will see and be alarmed / distressed. It is not necessary for A’s genitals to be seen by anyone or for anyone to be alarmed or distressed – e.g. expose to passers-by, it does not matter if they see or are distressed it is an offence (depending on his intent) Genitals means male or female sexual organs. Nudity and naturism are not criminal offences per se, as the above demonstrates. A naturist may expose his genitals in the knowledge that he will be seen by others but with no intention of alarming or causing distress to anyone he will not commit this offence. Common Law Offence You should be aware that the Common Law offence of ‘outraging public decency’ exists. This offence is different from Article 70, the Common Law offence is an indecency offence, and Article 70 is a sexual offence. OFFICIAL [PUBLIC] Page 103 This offence involves any act of such a lewd nature that it outrages public decency. The offence takes places in a public place and the act is capable of being seen by two or more people (even if they do not actually see it). The act might include, but is not limited to, a person exposing their genitals. Acts which have been prosecuted by the courts for this offence include: 1) Indecent exposure 2) Performing sexual activities in public 3) Nude bathing in inhabited areas 4) Disinterring a corpse for dissection 5) Exhibition of sculpture consisting of human head with freeze-dried human foetuses as earrings 6) Urinating on a war memorial while drunk. It has also been proven that acts which have taken place in private likely to be seen by others in public constitute a public nuisance and the offence will be committed. There must be a real possibility that two or more people in public can witness the act, even if they do not witness it. There is no need for the defendant to have any intention to cause alarm or distress. Voyeurism Article 71 Sexual Offences (NI) Order 2008 Article 71.—(1) A person commits an offence if— (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification. (2) A person commits an offence if— (a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and OFFICIAL [PUBLIC] Page 104  (b) he knows that B does not consent to his operating equipment with that intention. (3) A person commits an offence if— (a) he records another person (B) doing a private act, and (b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and (c) he knows that B does not consent to his recording the act with that intention. (4) A person commits an offence if he installs equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under paragraph (1). (5) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years. Interpretation Article 72.— (1) For the purposes of Article 71 a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and— (a) the person's genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public. (2) In Article 71, “structure” includes a tent, vehicle or vessel or other temporary or movable structure. Example The more common name of a ‘Peeping Tom’ is still used to describe voyeurs: Those OFFICIAL [PUBLIC] Page 105 people who secretly watch others undress or performing some sexual act, often for their own sexual gratification. In many cases voyeurs will trespass in order to satisfy their desires, for example into the grounds of student accommodation or the garden of a private house. This however may not always be the case. The offence of Voyeurism covers the person physically watching as well as those who would record for others to watch. Private Act The person being observed has their genitals, buttocks or breasts exposed or just covered with underwear, they are using a lavatory or are doing a sexual act that is not the kind ordinarily done in public. He Knows Most criminal offences require proof of a mental element. This may sometimes be a particular intent, such as possession of a controlled drug with intent to supply it to another. Alternatively, the mental element may simply require knowledge, as where a suspect knowingly has with them a made or adapted offensive weapon. In this offence the person has to know the other does not consent. This would be easy if the offender had asked permission to watch, although I doubt if this will happen. There is however within Harassment legislation the following phrase: “a reasonable person in possession of the same information would think the course of conduct amounted to harassment.” This principle should be used in these circumstances, in that: ‘a reasonable person in possession of the same information would think the other person would not consent’ If this is taken as a guideline it would corroborate evidence from a witness that consent was not given, as well as providing evidence in circumstances were a recording has been taken where people cannot be identified. OFFICIAL [PUBLIC] Page 106 This is just a guideline and the courts will decide whether a strict interpretation is given or whether ‘the reasonable person’ view prevails. Structure Includes a tent, vehicle or vessel or other temporary or moveable structure. Where The place in which the private act is occurring must, under the circumstances, be reasonably expected to provide privacy. Provided the place would reasonably be expected to provide privacy the offence can be committed anywhere. Power of Arrest Article 26 PACE (NI) Order 1989. Arrest without warrant - subject to necessity criteria. Intercourse with an Animal Article 73 of Sexual Offences (NI) Order 2008 Article 73.—(1) A person commits an offence if— (a) he intentionally performs an act of penetration with his penis, (b) what is penetrated is the vagina or anus of a living animal, and (c) he knows that, or is reckless as to whether, that is what is penetrated. (2) A person (A) commits an offence if— (a) he intentionally causes, or allows, A's vagina or anus to be penetrated, (b) the penetration is by the penis of a living animal, and (c) A knows that, or is reckless as to whether, that is what A is being penetrated by. (3) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; OFFICIAL [PUBLIC] Page 107  (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years. Penetration is of the slightest degree. This offence is related solely to penile penetration in relation to animals. There may be cases where an individual derives sexual pleasure from causing cruelty to animals or where an individual penetrates the sexual organs of an animal with objects, rather than the penis. Such cases should be tried under the cruelty provisions. Sexual Penetration of a Corpse Article 74 Sexual Offences (NI) Order 2008 Article 74(1) A person commits an offence if— (a) he intentionally performs an act of penetration with his penis, (b) what is penetrated is a part of the body of a dead person, and (c) he knows that, or is reckless as to whether, that is what is penetrated, and (d) the penetration is sexual. (2) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years. This is intended to cover when ‘A’ knows he is penetrating a dead body, for example in a mortuary, or where ‘A’ is reckless as to whether ‘B’ is alive or dead. It will not cover situations where ‘A’ penetrates ‘B’ fully believing ‘B’ to be alive, but in fact ‘B’ is dead, or where ‘B’ unexpectedly dies during intercourse. The penetration must be sexual. This is to exclude legitimate penetration of corpses, for example that which occurs during an autopsy. OFFICIAL [PUBLIC] Page 108 Sexual Activity in a Public Lavatory Article 75 Sexual Offences (NI) Order 2008 Article 75.—(1) A person commits an offence if— (a) he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise, (b) he intentionally engages in an activity, and (c) the activity is sexual. (2) For the purposes of this Article, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual. (3) A person guilty of an offence under this Article is liable on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both. A public lavatory is defined as a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise. A distinct definition of ‘sexual’ is used in this section (as opposed to the one applied elsewhere under Article 4 The Sexual offences (NI) Order 2008, because it is unlikely that the third party who witnesses the activity will have information about the purpose of the defendant. For this reason, the sexual activity is limited to that which a reasonable observer would see as unambiguously sexual. The offence of indecent behaviour has until now been used to prosecute sexual activity in a public lavatory. However, the offence of sexual activity in a public toilet removes this need to prove that the behaviour was indecent in that proof of the act in itself is sufficient for the offence to apply. OFFICIAL [PUBLIC] Page 109