Sexual Offences (Jersey)
Law 2018
Part 1
Interpretation
and General
1 Interpretation
(1) In this Law –
“adult” means a person aged 18 or older;
“child” means a person aged 17 or younger;
“consent” has the meaning given by Article 2;
“female genital mutilation” has the meaning given by Article 28(2);
“female genital mutilation offence” has the meaning
given by Article 30(1);
“gain” has the meaning given by Article 21;
“Minister” means the Minister
for Justice and Home Affairs;
“payment” has the meaning given by Article 21;
“penetration” is to be construed in accordance with
paragraph (3);
“reasonable belief” is to be construed in accordance
with Article 3;
“sexual” is to be construed in accordance with paragraph (2);
“touch” is to be construed in accordance with paragraph (4);
“vagina” includes the vulva.[1]
(2) For the purpose of this
Law an act (including penetration, touching or communication) is sexual if a
reasonable person would, in all the circumstances of the case, consider it to
be sexual.
(3) A reference in this Law
to “penetration” is to a continuing act from entry to withdrawal.
(4) For the purpose of this
Law, touching another person includes –
(a) ejaculating
semen onto the other person; and
(b) emitting
urine, faeces or saliva onto the other person.
(5) A reference in this Law
to a part of the body includes reference to such a part surgically constructed,
whether through gender reassignment surgery or otherwise.
(6) In this
Law –
(a) a
reference to a person “aged 16 or younger” is to a person who has
not attained his or her 17th birthday;
(b) a
reference to a person “aged 16” is to a person who has attained his
or her 16th birthday but has not attained his or her 17th birthday;
(c) a
reference to a person “aged 13, 14 or 15” is to a person who has
attained his or her 13th birthday but has not attained his or her 16th birthday;
and
(d) a
reference to a person “aged 16 or older” is to a person who has
attained his or her 16th birthday,
and references to persons of other ages are to be construed
accordingly.
2 Interpretation:
consent
(1) This Article applies
for the purpose of construing references to consent in Part 2.
(2) Consent means free
agreement.
(3) Agreement to an act is
not free agreement if the complainant agrees because –
(a) violence
is used or threatened by any person against the complainant or any other
person;
(b) the
complainant is unlawfully detained by the defendant;
(c) the
complainant is mistaken, as a result of deception by the defendant, as to the nature
or purpose of the act; or
(d) the
defendant induces the complainant to agree to the act by impersonating another
person.
(4) For the purpose of
paragraph (3), the complainant is the person whose consent to an act is
required, and the defendant is the person who is required to believe that the complainant
consents to the act.
(5) Paragraph (3) does
not limit other reasons for which agreement might not be free.
(6) A person does not
consent to an act if, at the time of the act or of the alleged consent, the
person –
(a) is asleep
or unconscious;
(b) is incapable
because of the effect of alcohol or any other substance (whether voluntarily
consumed or otherwise) of consenting to the act; or
(c) otherwise
lacks capacity, within the meaning of the Capacity and
Self-Determination (Jersey) Law 2016, to consent to the act.
(7) A person’s consent
to an act is not to be taken as implied merely by –
(a) that
person’s consent to another act;
(b) a
purported expression or indication of that person’s consent to the act,
if the expression or indication is given by another person; or
(c) another
person’s consent to that act, given by that other person on his or her
own behalf.
(8) Consent to an act –
(a) may
be taken back at any time before the act; and
(b) in
the case of a continuing act, may be taken back at any time during the act,
and accordingly, if the act takes place or continues after the
consent has been taken back, it does so without consent.
3 Interpretation:
defences and reasonable belief in consent, age or absence of exploitation
(1) For the purpose of any
provision of this Law under which a defendant is required to show a fact to
establish a defence, the defendant is to be taken to have shown the fact
if –
(a) sufficient
evidence of the fact is adduced to raise an issue with respect to it; and
(b) the
contrary is not proved beyond reasonable doubt.
(2) Paragraph (3)
applies if, in proceedings under this Law, a question arises as to whether the
defendant reasonably believed that another person consented to an act.
(3) The question is to be
determined having regard to all the circumstances, including in particular –
(a) whether
the defendant had taken any steps to ascertain whether the other person consented
to the act; and
(b) if so,
what those steps were.
(4) Paragraph (5)
applies if in proceedings under this Law a question arises, other than in a
defence under Article 13(3), as to whether the defendant reasonably
believed that another person was of or older than a particular age.
(5) The question is to be
determined having regard to all the circumstances, including in particular –
(a) whether
the defendant had taken any steps to ascertain the age of the other person; and
(b) if so,
what those steps were.
(6) Paragraph (7)
applies if, in proceedings under Article 22, a question arises as to
whether the defendant reasonably believed that no person had engaged in any
exploitative conduct in relation to the prostitution service.
(7) The question is to be
determined having regard to all the circumstances, including in particular –
(a) whether
the defendant had taken any steps to ascertain whether any person had engaged
in any exploitative conduct; and
(b) if so,
what those steps were.
4 Accessories
and children
(1) A child aged 15 or
younger is not guilty, whether under customary law or Article 1 of the Criminal Offences (Jersey)
Law 2009, of an offence of aiding, abetting, counselling, procuring or
inciting the commission by an adult of an offence under this Law against that
child.
(2) Paragraph (3)
applies to an offence, whether under customary law or under Article 1(1)(a)
of the Criminal Offences (Jersey)
Law 2009, of aiding, abetting or counselling the commission against a child
of an offence under Part 3, 4, 5 or 6 of this Law.
(3) A person is not guilty
of the offence if the person –
(a) acts
for the purpose of –
(i) protecting the
child from sexually transmitted infection,
(ii) protecting
the physical safety of the child,
(iii) preventing
the child from becoming pregnant, or
(iv) promoting
the child’s emotional well-being by the giving of advice; and
(b) does
not act for the purpose of –
(i) obtaining sexual
gratification for that person or for any other person,
(ii) causing
humiliation, distress or alarm to any person, or
(iii) causing
or encouraging the act that constitutes the offence against the child, or the
involvement of the child in that act.
(4) The States may by
Regulations amend paragraphs (2) and (3).
(5) Paragraphs (1) to
(3) do not affect any other enactment or any rule of law restricting the
circumstances in which a person is guilty of aiding, abetting, counselling, procuring
or inciting the commission of an offence under this Law.
Part 2
Non-consensual offences
5 Rape
(1) A person
(“D”), who intentionally penetrates the vagina, anus or mouth of
another person (“C”) with D’s penis, commits an offence
if –
(a) C
does not consent to the penetration; and
(b) D
does not reasonably believe that C consents.
(2) A person guilty of an
offence under paragraph (1) is liable to imprisonment for life and to a
fine.
6 Sexual
penetration without consent
(1) A person
(“D”), who intentionally penetrates the vagina or anus of another
person (“C”) with a part of D’s body or with anything else,
commits an offence if –
(a) the
penetration is sexual;
(b) C
does not consent to the penetration; and
(c) D
does not reasonably believe that C consents.
(2) A person guilty of an
offence under paragraph (1) is liable to imprisonment for life and to a
fine.
7 Sexual
touching without consent
(1) A person
(“D”), who intentionally touches another
person (“C”), commits an offence if –
(a) the
touching is sexual;
(b) C
does not consent to the touching; and
(c) D
does not reasonably believe that C consents.
(2) A person guilty of an
offence under paragraph (1) is liable to imprisonment for 10 years
and to a fine.
8 Causing
sexual act without consent
(1) A person
(“D”), who intentionally causes another
person (“C”) to engage in an act, commits an offence
if –
(a) the act
is sexual;
(b) C
does not consent to engaging in the act; and
(c) D
does not reasonably believe that C consents.
(2) A person guilty of an
offence under paragraph (1) is liable –
(a) to
imprisonment for life and to a fine, if the act caused involved –
(i) penetration of
C’s anus or vagina,
(ii) penetration
of C’s mouth with a person’s penis,
(iii) penetration
of a person’s anus or vagina with a part of C’s body or by C with
anything else, or
(iv) penetration
of a person’s mouth with C’s penis; or
(b) in
any other case, to imprisonment for 10 years and to a fine.
(3) For the purpose of
paragraph (1), and without limiting that paragraph, it is irrelevant
whether any other person or persons (whether or not including D) also
engage in the act.
Part 3
offences by adults against children aged 12 or
younger
9 Penile
penetration, sexual penetration or sexual touching of a young child
(1) An adult commits an
offence, and is liable to imprisonment for life and to a fine, if –
(a) the
adult intentionally penetrates the vagina, anus or mouth of another person with
the adult’s penis; and
(b) the
other person is a child aged 12 or younger.
(2) An adult commits an
offence, and is liable to imprisonment for life and to a fine, if –
(a) the
adult intentionally penetrates the vagina or anus of another person with a part
of the adult’s body or with anything else;
(b) the
penetration is sexual; and
(c) the
other person is a child aged 12 or younger.
(3) An adult commits an
offence, and is liable to imprisonment for 14 years and to a fine,
if –
(a) the
adult intentionally touches another person;
(b) the
touching is sexual; and
(c) the
other person is a child aged 12 or younger.
10 Causing
or inciting a sexual act with a young child
(1) An adult commits an
offence if –
(a) the
adult intentionally causes or incites another person to engage in an act;
(b) the act
is sexual; and
(c) the
other person is a child aged 12 or younger.
(2) An adult guilty of an
offence under paragraph (1) is liable –
(a) to
imprisonment for life and to a fine, if the offence was one of causing
engagement in an act and the act involved –
(i) penetration of
the child’s anus or vagina,
(ii) penetration
of the child’s mouth with a person’s penis,
(iii) penetration
of a person’s anus or vagina with a part of the child’s body or by
the child with anything else, or
(iv) penetration
of a person’s mouth with the child’s penis; or
(b) in
any other case, to imprisonment for 14 years and to a fine.
(3) For the purpose of
paragraphs (1) and (2), and without limiting those paragraphs, it is
irrelevant whether any other person or persons (whether or not including the
adult) also engage in the act.
Part 4
offences by adults against children aged 13 to
15
11 Unlawful
sexual intercourse with, sexual penetration of or sexual touching of an older
child
(1) An adult commits an
offence if –
(a) the
adult intentionally penetrates the vagina, anus or mouth of another person with
the adult’s penis; and
(b) the
other person is aged 13, 14 or 15.
(2) An adult commits an
offence if –
(a) the
adult intentionally penetrates the vagina or anus of another person with a part
of the adult’s body or with anything else;
(b) the
penetration is sexual; and
(c) the
other person is aged 13, 14 or 15.
(3) An adult commits an
offence if –
(a) the
adult intentionally touches another person;
(b) the
touching is sexual; and
(c) the
other person is aged 13, 14 or 15.
(4) It is a defence, in
relation to each of the offences under this Article, for the defendant to show
that the defendant reasonably believed that the other person was aged 16
or older.
(5) An adult guilty of an
offence under this Article is liable to imprisonment for 10 years and to a
fine.
12 Causing
or inciting a sexual act with an older child
(1) An adult commits an
offence, and is liable to imprisonment for 10 years and to a fine,
if –
(a) the
adult intentionally causes or incites another person to engage in an act;
(b) the act
is sexual; and
(c) the
other person is aged 13, 14 or 15.
(2) For the purpose of
paragraph (1), and without limiting that paragraph, it is irrelevant
whether any other person or persons (whether or not including the adult)
also engage in the act.
(3) It is a defence for the
defendant to show that the defendant reasonably believed that the other person
was aged 16 or older.
Part 5
Other offences against children aged 15 or
younger
13 Unlawful
sexual act between children
(1) A child commits an
offence, and is liable to imprisonment for 5 years and to a fine,
if –
(a) that
child intentionally –
(i) touches another
person,
(ii) engages
in any other act with another person,
(iii) causes
another person to engage in an act, or
(iv) incites
another person to engage in an act;
(b) the
touching or the act is sexual; and
(c) the
other person is aged 15 or younger.
(2) For the purpose of
paragraph (1)(a), it is irrelevant whether the touching or the act also forms
part of an offence committed by the other person.
(3) It is a defence for the
defendant to show that –
(a) the
other person was aged 13 or older; and
(b) the
defendant reasonably believed that the other person was aged 16 or older.
14 Causing
a child to watch or be present during a sexual act
(1) An adult
commits an offence if –
(a) the
adult intentionally engages in an act;
(b) the
act is sexual;
(c) for
the purpose of obtaining sexual gratification or of causing humiliation,
distress or alarm, the adult engages in the act when another person is present
or is in a place from which the adult can be observed; and
(d) the
other person is aged 15 or younger.
(2) An adult
commits an offence if –
(a) for
the purpose of obtaining sexual gratification or of causing humiliation,
distress or alarm, the adult intentionally causes another person (“C”) –
(i) to
watch a third person engaging in an act, or
(ii) to
look at an image of any person engaging in an act;
(b) the
act is sexual; and
(c) C
is aged 15 or younger.
(3) It is a defence, in
relation to each of the offences under this Article, for the defendant to show that –
(a) the
other person was aged 13 or older; and
(b) the
defendant reasonably believed that the other person was aged 16 or older.
(4) An adult guilty of an
offence under paragraph (1) or (2) is liable to imprisonment for 10 years
and to a fine.
15 Sexual
grooming of a child
(1) An adult commits an
offence, and is liable to imprisonment for a term of 10 years and to a
fine, if –
(a) having
met or communicated with another person on at least one earlier occasion, the
adult –
(i) intentionally
meets the other person, or
(ii) travels
with the intention of meeting the other person in any part of the world;
(b) at
the time, the adult intends to do anything to or in respect of the other
person, during or after the meeting and in any part of the world, which if done
will involve the commission by the adult of a relevant offence; and
(c) the
other person is aged 15 or younger.
(2) In paragraph (1),
the reference to the adult having met or communicated with the other person is
a reference to the adult –
(a) having
met the other person in any part of the world; or
(b) having
communicated with the other person by any means from, to or in any part of the
world.
(3) For the purpose of
paragraph (1)(b) a relevant offence is any of the following –
(a) an
offence under this Law;
(b) a
customary law offence of indecent assault or indecent exposure;
(c) an
offence under –
(i) Article 38(2)(a)
or (b) (having or procuring unlawful sexual intercourse with a mental patient)
of the Mental Health (Jersey) Law 1969, or
(ii) any
of Articles 74 to 76 (sexual offences: prohibited acts, relationship of
care, coercion) of the Mental Health (Jersey)
Law 2016;
(d) an
offence under Article 2 (taking, possessing or distributing indecent
photographs, etc. of children) of the Protection of Children
(Jersey) Law 1994;
(e) an
offence under Article 61 of the Customs and Excise (Jersey)
Law 1999 in so far as the offence relates to goods prohibited to be imported
under Article 2 of the Customs and Excise (Import
and Export Control) (Jersey) Order 2006 that are indecent photographs
of persons who are or appear to be aged under 16 years;
(f) an
offence under Article 11(14) (breach of child protection order, interim
child protection order or prescribed order) of the Sex Offenders (Jersey)
Law 2010; and
(g) an
offence, whether under customary law or under Article 1 of the Criminal Offences (Jersey)
Law 2009, of aiding, abetting, counselling or procuring an offence falling
within any of the preceding sub-paragraphs, or of conspiring or attempting to
commit, or of inciting another to commit, such an offence.
(4) The States may by
Regulations amend paragraph (2).
(5) An adult commits an offence,
and is liable to imprisonment for a term of 5 years and to a fine,
if –
(a) the
adult intentionally communicates, by any means, with another person
(irrespective of whether the other person is in Jersey or elsewhere);
(b) the
adult does so for the purpose of obtaining sexual gratification;
(c) the
communication –
(i) is sexual, or
(ii) is
intended to encourage the other person to make a communication (whether or not
to the adult) that is sexual; and
(d) the
other person is aged 15 or younger.
(6) It is a defence, in
relation to each of the offences under this Article, for the defendant to show that –
(a) the
other person was aged 13 or older; and
(b) the
defendant reasonably believed that the other person was aged 16 or older.
16 Paying
for sexual service by a child
(1) A person
(“D”) commits an offence, and is liable to imprisonment for
14 years and to a fine, if –
(a) D
intentionally obtains a service consisting of the performance of a sexual act
by another person (“C”);
(b) D
makes or promises payment for that service, knows or believes that another
person has done so, or intends that another person will do so; and
(c) C is
a child.
(2) For the purpose of
paragraph (1) it is irrelevant –
(a) whether
C performs the act on one occasion or more;
(b) whether
or not C is compelled to perform the act; and
(c) whether
the payment is to C or to any other person.
(3) It is a defence for D
to show that –
(a) C was
aged 16 or older; and
(b) D
reasonably believed that C was an adult.
17 Causing,
inciting or controlling prostitution or pornography involving a child
(1) A person
(“D”) commits an offence, and is liable to imprisonment for
14 years and to a fine, if, in relation to another person
(“C”) –
(a) whether
or not for gain, D intentionally –
(i) causes or incites
C’s sexual exploitation in any part of the world,
(ii) controls
any of the activities of C relating to C’s sexual exploitation in any
part of the world, or
(iii) arranges
or facilitates C’s sexual exploitation in any part of the world; and
(b) C is
a child.
(2) For the purpose of
paragraph (1), C is sexually exploited if either or both of paragraphs (3)
and (4) applies.
(3) This paragraph applies
if –
(a) an
indecent photograph of C is recorded; or
(b) a photograph
of C is recorded, when D knows or intends that it will be used to make an indecent
pseudo-photograph or a prohibited image.
(4) This paragraph applies
if –
(a) C
performs, or offers to perform, a sexual act for another person (whether D or
any other person);
(b) payment
is made or promised, by any person, in return for the act.
(5) In paragraph (3)
the expressions “indecent photograph”, “indecent
pseudo-photograph” and “prohibited image” have the same
meaning as in the Protection of Children
(Jersey) Law 1994.
(6) Article 16(2)
applies for the purpose of paragraph (4) as it applies for the purpose of
that Article.
(7) It is a defence for D
to show that –
(a) C was
aged 16 or older; and
(b) D
reasonably believed that C was an adult.
Part 6
Abuse of trust offences against persons
aged 16 or 17
18 Abuse
of trust by a sexual act against a person aged 16 or 17
(1) An adult
commits an offence, and is liable to imprisonment for a term of 5 years
and to a fine, if in relation to another person
(“C”) –
(a) the
adult intentionally –
(i) engages
in an act with or directed towards C, or
(ii) causes
or incites C to engage in an act;
(b) the
act is sexual;
(c) C
is a child aged 16 or 17; and
(d) the
adult is in a position of trust in relation to C.
(2) It is a
defence for the defendant to show –
(a) that
the defendant reasonably believed that C was an adult;
(b) that
the defendant did not know or suspect, and could not reasonably be expected to
know or suspect, that the defendant was in a position of trust in relation to
C;
(c) that
the defendant was C’s spouse or civil partner; or
(d) that,
immediately before the position of trust came into being, a lawful sexual
relationship existed between the defendant and C.
19 Positions
of trust
(1) For the purposes of
Article 18, an adult is in a position of trust in relation to a child if
any one or more of the 5 conditions in the following paragraphs is fulfilled.
(2) The first condition is
that –
(a) the
adult looks after any children (whether or not including the child in question)
in premises; and
(b) those
premises are –
(i) a
children’s home, if the child is accommodated in that home or in any
other children’s home in Jersey,
(ii) a
school, if the child is receiving education at that school or at any other school
in Jersey,
(iii) a
nursing home or a hospital, if the child is accommodated in that nursing home
or a hospital, or in any other nursing home or a hospital in Jersey, to receive
services provided there,
(iv) any
other institution in which a child may be detained under a court order or an
enactment, if the child is so detained in that institution or in any other such
institution in Jersey, or
(v) where
a child contact centre service, within the meaning of paragraph 11 of Schedule 1 to the Regulation of Care Law, is being provided,
(vi) where
a residential family centre service, within
the meaning of paragraph 12 of Schedule 1 to the
Regulation of Care Law, is being provided, or
(vii) where a
children and young people’s mental health service, within the meaning of paragraph
13 of Schedule 1 to the Regulation of Care Law, is
being provided.[2]
(3) The second condition is
that the adult looks after the child on
an individual basis, and does so –
(a) as
a person engaged in the provision of services provided by the Minister for Education and Lifelong Learning to enable or assist participation by other persons in education or
training;
(b) as
a person engaged, on a professional or voluntary basis and not as a family
member, in coaching, motivating, guiding or training the child for a sport,
hobby, career, or competitive event;
(c) in
pursuance of requirements to which the child is subject, being requirements
that are imposed –
(i) by
or under an enactment on the child’s release from detention for a
criminal offence, or
(ii) by
a court order made in criminal proceedings; or
(d) in
the exercise of functions conferred –
(i) by
or under an order to which the child is subject, being a care order, a
supervision order or an education supervision order, and
(ii) on
an authorized person or on the authority designated by that order.[3]
(4) The third condition is that the adult regularly has unsupervised contact with the child (whether
face to face or by any other means), and does so –
(a) in
the exercise of functions of the Minister for Children
and Families under Article 17 or 18
of the Children Law;
(b) in the
exercise of functions for the provision of secure accommodation for the
purposes of Article 36 of the Police Procedures and Criminal
Evidence (Jersey) Law 2003;
(c) as
a person who is to report to the court under Article 9 of the Children Law on matters
relating to the welfare of the child;
(d) as
a person specified by a court under Article 75(1)(b) of the Children Law to assist and
befriend the child; or
(e) as
a guardian ad litem of the child, appointed under Article 75(2)(b) of the Children Law, Article 18(6)
of the Adoption (Jersey)
Law 1961, or rule 51 of the Matrimonial Causes
Rules 2005.[4]
(5) The fourth condition is that the adult is an officer in an administration of the States for which the
Minister for Children and Families is assigned responsibility, and that Minister delegates to the
adult –
(a) that
Minister’s functions under Article 21 of the Children Law, being
functions in the discharge of which the adult advises and assists the child and
looks after the child on an individual basis; or
(b) the
functions imposed on that Minister in relation to the child by an order made
under Article 12 of the Adoption (Jersey)
Law 1961.[5]
(6) The fifth condition is
that the adult is appointed as the
guardian of the child, under Article 7 of the Children Law, or as the
child’s tuteur.
20 Interpretation
and amendment of Article 19
(1) For the purpose of Article 19, an
adult –
(a) looks
after children if the adult is regularly involved in caring for, teaching,
training, supervising or being in sole charge of children; and
(b) looks
after a child on an individual basis if –
(i) the adult
regularly looks after that child, and
(ii) in
the course of doing so, the adult regularly has unsupervised contact with that
child (whether face to face or by any other means).
(2) In Article 19 –
“care order” has the
meaning given by the Children Law;
“Children Law” means the Children (Jersey)
Law 2002;
“children’s
home” means –
(a) a
home or other place in which accommodation and maintenance are provided by the Minister for Children and Families under Article 20(1) of the Children Law; or
(b) a
home consisting of a care home service, within the
meaning of paragraph 4 of Schedule 1 to the
Regulation of Care Law, which provides services to children as well as
adults; or
(c) a
home consisting of a children’s home service within the meaning of
paragraph 7 of Schedule 1 to the Regulation of Care Law;
“Education Law” means the Education (Jersey)
Law 1999;
“education supervision
order” has the meaning given by the Education Law;
“hospital” has the
same meaning as in the Children Law;
“nursing home” means
a nursing home within the meaning of Article 1A of the Nursing Homes (Jersey) Law
1994;
“Regulation of Care Law” means the Regulation of Care (Jersey) Law
2014;
“school” has the
meaning given by the Education Law;
“supervision order”
has the meaning given by the Children Law.[6]
(3) The States may by
Regulations amend Article 19, and paragraphs (1) and (2) of this
Article, to add, remove or amend conditions under which an adult is in a
position of trust in relation to a child.
Part 7
Prostitution offences
21 Meaning
of prostitution service, payment and gain in Part 7
(1) In this Part
“prostitution service” means a sexual act that is performed by a
person for another person in return for payment, or for a promise of payment,
by or on behalf of that other person.
(2) For the purpose of
paragraph (1) it is irrelevant –
(a) whether
the act is performed on one occasion or more;
(b) whether
or not a person is compelled to perform the act; and
(c) whether
the payment is to the person who performs the act or to any other person.
(3) In this Law “payment”
means the giving of a financial advantage, including the discharge of an
obligation to pay or the provision of any goods or of a service (including a sexual
service) gratuitously or at a discount.
(4) In this Law “gain”
means the obtaining of –
(a) a
payment; or
(b) the
goodwill of another person, if that goodwill is or appears likely (whether
immediately or in time) to lead to a payment.
22 Paying
for a prostitution service by an exploited person
(1) A
person (“A”) commits an offence, and is liable to a fine of
level 3 on the standard scale, if –
(a) A
makes or promises payment for the performance by another person
(“B”) of a prostitution service; and
(b) a
third person (“C”) has engaged in any exploitative conduct that –
(i) was of a kind
likely to induce or encourage B to perform, or offer to perform, the
prostitution service, and
(ii) was
engaged in by C for gain for, or in the expectation of gain for, C or another
person (apart from A or B).
(2) For
the purpose of paragraph (1) it is irrelevant –
(a) where
in the world B is to perform the prostitution service; and
(b) whether
B performs the prostitution service or not.
(3) It
is a defence for A to show that A reasonably believed that no third person
(whether C or any other person) had engaged in any exploitative conduct falling
within paragraph (1)(b)(i) or (ii).
(4) For
the purpose of paragraphs (1)(b) and (3) exploitative conduct
is –
(a) the
use of force, threats (whether or not relating to violence) or any other form
of coercion; or
(b) the
practice of any form of deception.
23 Offering
or seeking prostitution service in road or public place
(1) A person commits an
offence, and is liable to a fine of level 3 on the standard scale, if the
person, while on or in a road or other public place –
(a) contacts,
or loiters with a view to so contacting, any other person; and
(b) does
so for the purpose of offering a prostitution service to that other person or
seeking a prostitution service from that other person.
(2) For the purpose of
paragraph (1) –
(a) “road
or other public place” has the same meaning as in the Road Traffic (Jersey)
Law 1956; and
(b) the reference
to being on or in a road or public place includes being in a vehicle that is on
or in a road or public place.
(3) Paragraph (1) does
not apply if the contacting of the other person, and the offering or seeking of
the service, are conducted solely by means of electronic communication, within
the meaning of the Electronic Communications
(Jersey) Law 2000, in a manner that does not rely on the persons
being on or in the same road or public place.
24 Advertising
services of prostitute on public structure
(1) A person commits an
offence, and is liable to a fine of level 3 on the standard scale, if the
person –
(a) places
on, or in the immediate vicinity of, a public structure an advertisement
relating to prostitution; and
(b) intends
the advertisement to come to the attention of any other person.
(2) In paragraph (1)
“public structure” means any structure that –
(a) is
provided as an amenity for the use of the public or a section of the public;
and
(b) is
located in a public place, being a place to which the public have or are
permitted to have access (whether on payment or otherwise), other
than –
(i) a place to which
children aged 15 or younger are not permitted to have access (whether by
law or otherwise), or
(ii) premises
wholly or mainly used for residential purposes.
(3) For the purpose of this
Article, an advertisement relates to prostitution if it –
(a) is
for a prostitution service; or
(b) indicates
that a prostitution service is offered or performed at premises to which the
advertisement refers.
(4) In proceedings for an
offence under this Article, if a reasonable person would consider an
advertisement to fall within paragraph (3), the advertisement is to be
presumed to be an advertisement relating to prostitution unless it is shown not
to be.
25 Causing,
inciting or controlling prostitution for gain
(1) A person commits an
offence, and is liable to imprisonment for 7 years and to a fine, if the
person –
(a) intentionally –
(i) causes or incites
another person to perform, or offer to perform, a prostitution service, or
(ii) controls
an act of another person, that relates to that other person performing, or
offering to perform, a prostitution service; and
(b) does
so for or in the expectation of gain for himself or herself or a third person.
(2) It is irrelevant where
in the world the prostitution service is to be offered or provided.
26 Controlling
or facilitating entry to premises used for prostitution
(1) A person commits an
offence, and is liable to imprisonment for 7 years and to a fine, if the
person –
(a) controls
or facilitates entry to premises;
(b) knows
or intends that a person entering, or attempting or requesting to enter, the
premises does so in order –
(i) to perform a
prostitution service on the premises, or
(ii) to
have a prostitution service performed on the premises for his or her sexual
gratification; and
(c) does
not fall within one of paragraphs (2) and (3).
(2) A person falls within
this paragraph if –
(a) that
person performs a prostitution service on the premises; and
(b) no
other person performs a prostitution service on the premises.
(3) A person falls within
this paragraph if –
(a) that
person is one of 2 persons who perform a prostitution service on the
premises;
(b) no
person, other than those 2 persons, performs a prostitution service on the
premises; and
(c) the
other of those 2 persons –
(i) is not a child,
and
(ii) is
not induced or encouraged, by a person who engages in exploitative conduct
within the meaning of Article 22, to perform a prostitution service.
(4) For the purpose of
paragraph (1)(a), controlling entry to premises does not include
preventing entry to the premises with a view to preventing or ending all use of
the premises for the performance of prostitution services.
27 Letting
premises for use for prostitution or failing to prevent that use
(1) A person commits an
offence if the person –
(a) is
the owner of premises, or the agent of the owner, or any other person entitled
to let the premises; and
(b) enters
into an agreement to let those premises, knowing or having reasonable grounds
to suspect that the lessee, or another person with the permission or connivance
of the lessee, intends to use the premises –
(i) to commit an
offence under Article 16, 22, 25 or 26, or
(ii) to
enable another person to commit such an offence.
(2) A person commits an
offence if the person –
(a) is
the owner, lessee or occupier of premises, or otherwise controls the occupation
or use of premises;
(b) knows
that another person has used, is using or intends to use the
premises –
(i) to commit an
offence under Article 16, 22, 25 or 26, or
(ii) to
enable another person to commit such an offence; and
(c) fails,
without reasonable excuse, to take reasonable steps to prevent that use of the
premises continuing or being repeated.
(3) A person guilty of an
offence under paragraph (1) or (2) is liable to imprisonment for
6 months and to a fine of level 3 on the standard scale.
Part 8
Female Genital Mutilation offences and Orders
28 Carrying
out female genital mutilation
(1) A person commits an
offence, and is liable to imprisonment for 14 years and to a fine, if the
person carries out female genital mutilation on another person.
(2) In this Law,
“female genital mutilation” means, subject to paragraph (3),
the excision, infibulation or other mutilation of the whole or any part of the
labia majora, labia minora or clitoris.
(3) A surgical operation,
performed by a relevant practitioner on a person (the “patient”),
is not female genital mutilation if –
(a) the patient
is in any stage of labour, or has just given birth, and the operation is for a medical
purpose connected with the labour or birth;
(b) the
operation is necessary for the patient’s physical or mental health; or
(c) by
virtue of the operation, or of a process of which the operation forms a part,
the patient is a transgender person for the purpose of paragraph 5 of
Schedule 1 to the Discrimination (Jersey)
Law 2013.
(4) For the purpose of
paragraph (3) a relevant practitioner is –
(a) in
relation to an operation meeting the condition in sub-paragraph (3)(a) –
(i) a doctor,
(ii) a
person undergoing a course of training with a view to becoming a doctor,
(iii) a
person registered under the Health Care (Registration)
(Jersey) Law 1995 as a midwife or as a midwife prescribing
practitioner, or
(iv) a
person undergoing a course of training with a view to becoming so registered;
(b) in
relation to an operation meeting the condition in sub-paragraph (3)(b) or
(c), a doctor.
(5) For the purpose of
paragraph (3)(b), in determining whether an operation is necessary for a
person’s mental health it is immaterial whether that person or any other
person believes that the operation is required as a matter of custom or ritual.
29 Assisting
female genital mutilation
(1) A person commits an
offence, and is liable to imprisonment for 14 years and to a fine, if the
person aids, abets, counsels or procures another person to carry out female
genital mutilation on that other person’s own body.
(2) A person is guilty of
an offence, and is liable to imprisonment for 14 years and to a fine, if the
person aids, abets, counsels or procures a person who is not habitually
resident in Jersey to do a relevant act of female genital mutilation outside
Jersey.
(3) For the purpose of
paragraph (2) an act is a relevant act of female genital mutilation
if –
(a) it is
done in relation to a person who is habitually resident in Jersey; and
(b) it
would, if done by such a person, constitute an offence under Article 28.
(4) Paragraphs (3) to
(5) of Article 28 apply for the purpose of the offence under paragraph (2)
of this Article as they do to the offence under Article 28(1), but the
reference to a relevant practitioner is to be read as including a reference to
a person who exercises functions corresponding, in the jurisdiction in which
the operation is performed, to those of a relevant practitioner.
30 Failing
to protect a child aged 15 or younger from risk of genital mutilation
(1) In this
Article –
“female genital mutilation offence” means an offence
under Article 28 or 29;
“person responsible”, in relation to a child, means a
person who –
(a) has
parental responsibility, within the meaning of the Children (Jersey)
Law 2002, for the child; or
(b) is an
adult and has assumed (and not relinquished) responsibility for caring for the child
in the manner of a parent;
“relevant time” means the time at which female genital
mutilation takes place.
(2) If a female genital
mutilation offence is committed against a child aged 15 or younger, each
person responsible for the child at the relevant time commits an offence and is
liable to imprisonment for 7 years and to a fine.
(3) It is a defence for the
defendant to show that –
(a) at
the relevant time, the defendant did not think that there was a significant
risk of a female genital mutilation offence being committed against the child,
and could not reasonably have been expected to be aware that there was any such
risk; or
(b) the
defendant took such steps as he or she could reasonably have been expected to
take to protect the child from being the victim of a female genital mutilation
offence.
(4) Nothing in the
definition “female genital mutilation offence” in paragraph (1)
is to be construed, for purpose of the offence under paragraph (2), as
requiring the prosecutor to prove which of Articles 28 and 29 the
female genital mutilation offence falls under.
31 Duty
to notify police of apparent female genital mutilation of child
(1) A regulated
professional must notify the police in accordance with paragraph (4) if, in
the course of working as a regulated professional, he or she –
(a) is informed
by a child that female genital mutilation (however described) has been carried
out on the child; or
(b) observes
physical signs on a child that appear to show that female genital mutilation
has been carried out on the child.
(2) A regulated
professional is –
(a) a
teacher, being a person employed to teach in –
(i) a provided
school, within the meaning of the Education (Jersey)
Law 1999, or
(ii) a
non-provided school that is a primary or secondary school, within the meaning
of those terms in that Law;
(b) a
social worker, being a person registered to engage in the registrable
occupation of social worker, within the meaning of the Health Care (Registration)
(Jersey) Law 1995;
(c) a
doctor;
(d) a
midwife or nurse, being a person registered to engage in any of the following
registrable occupations, within the meaning of the Health Care (Registration)
(Jersey) Law 1995 –
(i) midwife,
(ii) midwife
prescribing practitioner,
(iii) nurse,
(iv) nurse
prescribing practitioner,
(v) registered nurse: first
level,
(vi) registered
nurse: second level,
(vii) specialist
community public health nurse,
(viii) specialist
community public health nurse prescribing practitioner;
(e) a
person working lawfully as a trainee in any of those occupations; or
(f) a
person who is registered under the Piercing and Tattooing
(Jersey) Law 2002 to administer body piercing or tattooing.
(3) Paragraph (1) does
not apply –
(a) if
the regulated professional has already complied with that paragraph in respect
of previous information, or a previous observation, relating to the same child
and the same apparent occurrence of female genital mutilation; or
(b) if,
and for so long as, the regulated professional reasonably believes –
(i) that another regulated
professional has already notified the police under paragraph (1) in
respect of the same child and the same apparent occurrence of female genital
mutilation, or
(ii) that
the apparent female genital mutilation occurred in a surgical operation that, by
virtue of Article 28(3), would not constitute an offence under Article 28(1).
(4) Notification under
paragraph (1) –
(a) must
identify the child;
(b) must
explain why the notification is made;
(c) must
be given before the end of one month from the time when paragraph (1)
first applied to the regulated professional in respect of the particular child’s
apparent female genital mutilation;
(d) must
be given to the Chief Officer of the States Police Force, within the meaning of
the States of Jersey Police Force
Law 2012, or to a person nominated by that Chief Officer for this purpose (whether
by reference to a particular person or to a description of persons); and
(e) may
be given orally or in writing.
(5) A regulated
professional who contravenes paragraph (1) commits an offence and is
liable to a fine of level 3 on the standard scale.
(6) A disclosure made in a
notification under paragraph (1) does not breach –
(a) any
obligation of confidence owed by the person making the disclosure; or
(b) any
other restriction on the disclosure of information.
(7) Nothing in this Article
is to be construed as limiting any other power or duty of a regulated
professional to disclose information about female genital mutilation.
(8) The Minister may by
Order amend this Article to add, remove or otherwise alter the descriptions of
persons regarded as regulated professionals for the purpose of this Article.
(9) The Minister must,
before making an Order under paragraph (8), consult such representative
body of professionals as appears appropriate to the Minister.
32 Female
genital mutilation protection orders
(1) The Royal Court may, on
the application of the Attorney General, make an order (an “FGM
protection order”) for the purpose of –
(a) protecting
a person against the commission of a female genital mutilation offence; or
(b) protecting
a person against whom such an offence has been committed.
(2) The Attorney General
may make the application in proceedings brought for that purpose or in any
other proceedings, including criminal proceedings, proceedings under the Children (Jersey)
Law 2002 or proceedings between the parents of a child.
(3) In deciding whether to
exercise its powers under this Article and, if so, in what manner, the Royal
Court must have regard to all the circumstances, including the need to secure
the health, safety and well-being of the person to be protected.
(4) An FGM protection order
may contain –
(a) such
prohibitions, restrictions or requirements; and
(b) such
other terms,
as the Royal Court considers appropriate for the purposes of the
order.
(5) The terms of an FGM
protection order may, in particular, relate to –
(a) conduct
outside Jersey as well as (or instead of) conduct within Jersey;
(b) a
respondent who is, or may become, involved in any other respect as well as (or
instead of) a respondent who commits or attempts to commit, or may commit or
attempt to commit, a genital mutilation offence against a person;
(c) any
other person who is, or may become, involved in any other respect as well as a
respondent of any kind, such as –
(i) a person aiding,
abetting, counselling, procuring, encouraging or assisting another person to
commit, or attempt to commit, a genital mutilation offence against a third
person, or
(ii) a
person conspiring to commit, or to attempt to commit, such an offence.
(6) The Royal Court may, in
any case where it is just and convenient to do so, make an FGM protection order
even though the respondent has not been given such notice of the proceedings as
would otherwise be required by rules of court.
(7) In deciding whether to
exercise its powers under paragraph (6), the Royal Court must have regard
to all the circumstances including –
(a) the
risk to any person of becoming a victim of a female genital mutilation offence
if the order is not made immediately;
(b) whether
it is likely that an actual or potential victim of a female genital mutilation
offence will be deterred or prevented from giving evidence in connection with
the offence or the order if the order is not made immediately; and
(c) whether
there is reason to believe that –
(i) the respondent is
aware of the proceedings but is deliberately evading service, and
(ii) the
delay involved in effecting service will cause serious prejudice to the girl to
be protected or (if different) an applicant.
(8) The Royal Court must
give the respondent an opportunity to make representations about an order that
has been made under paragraph (6) –
(a) as
soon as is just and convenient; and
(b) at a
hearing of which notice has been given to all the parties in accordance with
rules of court.
(9) An FGM protection order
may be made for a specified period or until varied or discharged.
(10) The Royal Court may vary or
discharge an FGM protection order of its own motion or on an application
by –
(a) the Attorney
General;
(b) the
person being protected by the order;
(c) the
respondent; or
(d) any
other person affected by the order.
(11) Paragraphs (6) to (8)
apply to a variation of an FGM protection order as they apply to the making of
such an order (and references in those paragraphs to the making of an FGM
protection order are to be read accordingly).
(12) The power to make rules of
court under the Royal Court (Jersey)
Law 1948 includes the power to make rules of court for the purposes of this
Article.
33 Breaching
FGM protection order
(1) A person commits an
offence, and is liable to imprisonment for 12 months and to a fine, if the
person without reasonable excuse does anything that the person is prohibited
from doing by an order made under Article 32.
(2) If an order is made
under Article 32(6), a person does not commit an offence under this
Article by conduct engaged in at a time before the person is made aware of the
existence of the order.
Part 9
Miscellaneous Sexual Offences
34 Penetrative
sex with a blood relative by persons aged 16 or older
(1) A person aged 16
or older (“A”) commits an offence, and is liable to imprisonment
for 5 years and to a fine, if –
(a) in
relation to another person who is aged 16 or older
(“B”) –
(i) A intentionally
penetrates B’s vagina or anus with a part of A’s body, or
(ii) A
intentionally causes or allows a part of B’s body to penetrate A’s
vagina or anus;
(b) the
penetration is sexual; and
(c) A is a
blood relative of B.
(2) For the purpose of
paragraph (1)(c) and (d), a blood relative is a person who –
(a) is a grandparent,
aunt, uncle, parent, sister, brother, half-sister, half-brother, child, niece,
nephew or grandchild; and
(b) has
that relationship without reliance on a marriage, civil partnership, or
adoption.
(3) It is a defence for A
to show that A did not know, and could not reasonably have been expected to
know, that A was a blood relative of B.
35 Exposure
A person commits an offence, and is liable to imprisonment for
2 years and to a fine, if he or she exposes his or her penis, scrotum or
vagina –
(a) intending it to be
seen; and
(b) intending –
(i) to
humiliate, alarm or distress any of the persons who may see it, or
(ii) to
obtain sexual gratification, without a reasonable belief that all of the
persons who may see it have consented to seeing it.
36 Voyeurism
(1) For the purposes of
paragraphs (2) and (3) 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 penis, scrotum, vagina, 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) A person commits an
offence if the person –
(a) for
the purpose of obtaining sexual gratification, observes another person doing a
private act; and
(b) does
not reasonably believe that the other person consents to being observed for
that purpose.
(3) A person
(“A”) commits an offence if –
(a) A
operates equipment or records an image;
(b) A
intends by doing so to enable A, or any other person other than B, for the
purpose of obtaining sexual gratification, to observe, or to look at an image
of, another person (“B”) doing a private act; and
(c) A
does not reasonably believe that B consents to the operation or recording with
that intention.
(4) A person
(“A”) commits an offence if –
(a) A
operates equipment, or records an image, under the clothing of another person
(“B”);
(b) A
intends by doing so to enable A, or any other person other than B, for the
purpose of obtaining sexual gratification, to observe or to look at an image
of –
(i) B’s penis,
scrotum, vagina, buttocks or breasts (whether exposed or covered with
underwear), or
(ii) the
underwear covering any of those body parts;
(c) those
body parts or the underwear would not otherwise be visible; and
(d) A
does not reasonably believe that B consents to the operation or recording with
that intention.
(5) A person commits an
offence if the person installs equipment, or constructs or adapts a structure
or part of a structure, with the intention of enabling that person or another
person to commit an offence under any of paragraphs (2) to (4).
(6) In paragraph (5) “structure”
includes a tent, vehicle or vessel or other temporary or movable structure.
(7) A person guilty of an
offence under this Article is liable to imprisonment for 2 years and to a
fine.
37 Penetration
of or by an animal
A person commits an offence, and is liable to imprisonment for 5 years
and to a fine, if the person intentionally –
(a) penetrates, with the
person’s penis, the vagina or anus of a living animal, or a similar part
of a living animal that lacks a vagina or anus; or
(b) causes or allows the
person’s vagina or anus to be penetrated by the penis of a living animal.
38 Administering
a substance to stupefy or overpower a person for sexual purposes
A person commits an offence, and is liable to imprisonment for 10 years
and to a fine, if the person –
(a) intentionally
administers a substance to, or causes a substance to be taken by, another
person (“B”);
(b) does not reasonably
believe that B consents; and
(c) intends to stupefy or
overpower B, so as to –
(i) enable
himself or herself, or any other person, to engage in a sexual act that
involves B, or
(ii) cause
B to engage in a sexual act.
39 Committing
an offence with intent to commit a sexual offence
A person commits an offence, and is liable to imprisonment for 10 years
and to a fine, if the person commits any offence with the intention of
committing a further offence under any of Parts 2, 3 or 4.
40 Sexual
offences outside Jersey
(1) In this
Article –
“British national” means an individual who is, within
the meaning of the British Nationality Act 1981 of the United Kingdom, a
British citizen, a British overseas territories citizen, a British National
(Overseas), a British Overseas citizen, a British subject or a British
protected person;
“relevant offence” means –
(a) an
offence under this Law; and
(b) any
other offence that is a sexual offence to which the Sex Offenders (Jersey)
Law 2010 applies by virtue of Article 2 of that Law.
(2) If –
(a) a
person is a British national and is habitually resident in Jersey;
(b) the
person does an act in a jurisdiction outside Jersey; and
(c) the
act, if done in Jersey, would constitute a relevant offence,
the person is guilty in Jersey of that relevant offence, and
accordingly the person may be proceeded against in Jersey in respect of the
relevant offence.
(3) If –
(a) a
person is not a British national but is habitually resident in Jersey;
(b) the
person does an act in a jurisdiction outside Jersey;
(c) the
act constitutes an offence under the law of that jurisdiction; and
(d) the
act, if done in Jersey, would constitute a relevant offence,
the person is guilty in Jersey of that relevant offence, and
accordingly the person may be proceeded against in Jersey in respect of the relevant
offence.
(4) The condition in
paragraph (3)(c) is to be taken to be met unless, not later than rules of
court may provide, the defendant serves on the prosecutor a notice –
(a) stating
that, on the facts as alleged with respect to the act in question, the
condition is not in the defendant’s opinion met;
(b) showing
the grounds for that opinion; and
(c) requiring
the prosecutor to prove that the condition is met.
(5) But the court, if it
thinks fit, may permit the defendant to require the prosecutor to prove that
the condition in paragraph (3)(c) is met without service of a notice under
paragraph (4).
(6) On a trial before the
Royal Court, the question whether the condition in paragraph (3)(c) is met
is to be treated as a question of law.
(7) If the relevant offence
is the offence under Article 28(1), then the reference in Article 28(3)
to a “relevant practitioner” is to be read as to a person who,
under the law of the other jurisdiction, exercises functions corresponding to
those of a relevant practitioner within the meaning of Article 28(4).
(8) A reference in this
Article to an offence includes a reference –
(a) to an
attempt, conspiracy or incitement to commit the offence; and
(b) to
aiding and abetting, counselling or procuring the commission of the offence,
whether under customary law or under Article 1 of the Criminal Offences (Jersey)
Law 2009.
(9) An act punishable under
the law of a jurisdiction outside Jersey constitutes an offence under that law
for the purpose of this Article however it is described by the law of that
jurisdiction.
(10) The Minister may, by Order,
amend the definition “relevant offence” in paragraph (1) to
make different provision as to offences appearing to the Minister to be sexual.
Part 10
Miscellaneous provisions, Repeals and
Amendments
41 Jury
trials and mixed indictments[7]
(1) For
the purpose of the Criminal Procedure (Jersey) Law 2018 –
(a) an
offence under Part 2, 3 or 4 is to be treated as if that offence were an
offence under customary law rather than an offence under statutory law; and
(b) on an
indictment falling within paragraph (2), the Royal Court is to decide,
having regard to the nature and gravity of the offences and after hearing any
submissions from the defence and the prosecution, the method by which the
defendant is to be tried.
(2) An
indictment falls within this paragraph if it charges 2 or more offences, of
which –
(a) at
least one is –
(i) an offence under
customary law, or
(ii) an
offence under statutory law that is to be treated as an offence under customary
law under paragraph (1)(a);
(b) at
least one other is an offence under statutory law (whether under this Law or
any other enactment) that is not to be treated as an offence under customary
law under paragraph (1)(a); and
(c) at
least one, whether falling within sub-paragraph (a)(ii) or (b), is an
offence under any Part of this Law.
42 Alternative
charges
(1) If an act constitutes
an offence under more than one Article of this Law, nothing in this Law is to
be read, unless express provision is made otherwise, as preventing the charging
of, or a prosecution or conviction for, either of the offences merely by virtue
of the fact that the act also constituted the other offence.
(2) In particular, and
without prejudice to the generality of paragraph (1), nothing in Part 2,
Part 3, Part 4 or Article 13 is to be read, in relation to an
act to which a child does not consent –
(a) as preventing
the charging of, or a prosecution or conviction for, an offence under Part 2
in relation to that act merely by virtue of the fact that the act also
constituted an offence under Part 3, Part 4 or Article 13; or
(b) as preventing
the charging of, or a prosecution or conviction for, the offence under Part 3,
Part 4 or Article 13 in relation to the act merely by virtue of the
fact that the act also constituted an offence under Part 2.
(3) Paragraphs (1) and
(2) do not limit the application to this Law of Article 12 of the Interpretation (Jersey)
Law 1954.
43 Evidence
as to sexual history
(1) Except with the leave
of the court –
(a) no
evidence may be adduced; and
(b) no
question may be asked in cross-examination,
by or on behalf of a relevant defendant, about the sexual history of
a complainant.
(2) For the purpose of
paragraph (1) –
“complainant” means a witness other than a relevant
defendant;
“relevant defendant” means a defendant prosecuted for an
offence under this Law, an offence of indecent assault under customary law, a
customary law offence abolished by Article 44 or an offence under a Law
repealed by Article 45;
“sexual history” means the fact that a complainant has
engaged in a sexual act with a person other than a relevant defendant.
(3) The States may by
Regulations –
(a) provide
that paragraph (1) does or does not apply to evidence adduced, and to a
question asked, for a purpose prescribed by the Regulations;
(b) prescribe
grounds on which the court may or may not give leave;
(c) amend
paragraph (2).
(4) The power to make Rules
of Court under –
(a) Article 112
of the Criminal Procedure (Jersey)
Law 2018;
(b)
(c) Articles 19
and 40 of the Court of Appeal (Jersey)
Law 1961,
is, in each case, to be taken to include the power to make Rules of
Court necessary or convenient for the purpose of this Article.[8]
44 Certain
customary law sexual offences abolished and others saved
(1) The following customary
law offences are abolished –
(a) rape;
(b) sodomie;
(c) gross
indecency;
(d) incest;
(e) bestialité.
(2) Article 17(2) of
the Interpretation (Jersey)
Law 1954 applies in relation to the abolition of a customary law offence by
paragraph (1) as it applies in relation to the repeal or expiry of a
provision of an enactment creating an offence.
(3) Nothing in this Law is
to be read as limiting any other customary law offence, including in particular
the offences of –
(a) indecent
assault;
(b) outraging
public decency;
(c) conduct
likely to result in a breach of the peace;
(d) indecent
exposure.
45 Amendments
of other enactments
The States may by
Regulations amend any other enactment, other than this Law, to make such
consequential provision as the States consider necessary or expedient, including
in particular in relation to a reference (direct or indirect) in that other
enactment to a sexual offence under any enactment or under customary law, being
an offence that –
(a) is
an offence under a provision of an enactment or of customary law that is
amended or repealed by this Law; or
(b) is
otherwise constituted in whole or in part by a sexual act.
46 Transitional
and related provisions
(1) Paragraph (2) applies
if, in any proceedings –
(a) a
person (“the defendant”) is charged in respect of the same act both
with an offence under this Law (“the new offence”) and with an
offence repealed or abolished by this Law (“the old offence”);
(b) the
only thing preventing the defendant from being found guilty of the new offence
is the fact that it has not been proved beyond a reasonable doubt that the time
when the act took place was after the coming into force of the provision of
this Law creating the new offence; and
(c) the
only thing preventing the defendant from being found guilty of the old offence
is the fact that it has not been proved beyond a reasonable doubt that the time
when the act took place was before the coming into force of the provision of
this Law repealing the old offence.
(2) For the purpose of
determining the guilt of the defendant it is to be conclusively presumed that
the time when the act took place was –
(a) if
the maximum penalty of imprisonment for the old offence is less than the
maximum penalty of imprisonment for the new offence, a time before the coming
into force of the provision of this Law repealing of the old offence; and
(b) in
any other case, a time after the coming into force of the provision of this Law
creating the new offence.
(3) For the purpose of
paragraph (2), if the old offence is a customary law offence then the
maximum penalty of imprisonment for that offence is to be taken to be less than
a maximum penalty of life imprisonment under this Law, but greater than any
other maximum penalty of imprisonment under this Law.
(4) Paragraphs (2) and
(3) apply to offences of attempting, inciting or conspiracy, in relation to an
old or new offence, as they apply in relation to the old or new offences.
(5) The States may by
Regulations make such other transitional, transitory or saving provision as the
States consider necessary or expedient in connection with the coming into force
of this Law.
47 Orders
and Regulations
(1) An Order or Regulations
under this Law may contain such transitional, consequential, incidental,
supplementary or saving provision, other than an amendment of this Law, as
appears to the Minister or the States to be necessary or expedient for the
purposes of the Order or Regulations.
(2) A power under this Law
to amend, by Regulations or Order, any provision of this Law includes the power
to make such transitional, consequential, incidental or supplementary amendment
to any other provision of this Law as appears to the States or the Minister to
be necessary or expedient.
48 Citation
This Law may be cited as the Sexual Offences (Jersey) Law 2018.