Sexual Offences
(Jersey) Law 2018
A LAW to make new provision about
sexual offences, to amend the law relating to certain sexual acts, to amend the
Sex Offenders (Jersey) Law 2010, and for connected purposes
Adopted by the
States 21st March 2018
Sanctioned by
Order of Her Majesty in Council 23rd May 2018
Registered by the
Royal Court 1st
June 2018
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
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 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.
(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[1], 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[2], 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[3], or
(ii) any of Articles 74
to 76 (sexual offences: prohibited acts, relationship of care, coercion) of the
Mental Health (Jersey) Law 2016[4];
(d) an
offence under Article 2 (taking, possessing or distributing indecent
photographs, etc. of children) of the Protection of Children (Jersey) Law 1994[5];
(e) an
offence under Article 61 of the Customs and Excise (Jersey) Law 1999[6] 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[7] 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[8]; and
(g) an
offence, whether under customary law or under Article 1 of the Criminal
Offences (Jersey) Law 2009[9], 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[10].
(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, or
(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.
(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 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.
(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 Health and Social Services 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[11];
(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[12], or rule 51 of the Matrimonial Causes Rules 2005[13].
(5) The fourth condition
is that the adult is an officer in an administration
of the States for which the Minister for Health and Social Services 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.
(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[14];
“children’s
home” means –
(a) a home or other place in which accommodation
and maintenance are provided by the Minister for Health and Social Services
under Article 20(1) of the Children Law; or
(b) a voluntary home, within the meaning of the Children
Law;
“Education Law” means the Education (Jersey) Law 1999[15];
“education supervision
order” has the meaning given by the Education Law;
“hospital” has the same
meaning as in the Children Law;
“nursing home” has
the same meaning as in the Nursing and Residential Homes (Jersey) Law 1994[16];
“school” has the
meaning given by the Education Law;
“supervision order”
has the meaning given by the Children Law.
(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[17]; 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[18], 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[19].
(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[20] 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[21], 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[22], 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[23];
(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[24] 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[25], 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[26] 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[27] 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[28] 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[29].
(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
(1) For
the purpose of the Loi (1864) réglant la
Procédure Criminelle[30] –
(a) an
offence under Part 2, 3 or 4 is to be treated as if that offence were a crime rather than a contravention;
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) a crime or délit, or
(ii) a contravention that
is to be treated as a crime under paragraph (1)(a);
(b) at
least one other is a contravention (whether
under this Law or any other enactment) that is not to be treated as a crime 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[31].
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 29
of the Magistrate’s Court (Miscellaneous Provisions) (Jersey) Law 1949[32];
(b) Article 13
of the Royal Court (Jersey) Law 1948[33];
(c) Articles 19
and 40 of the Court of Appeal (Jersey) Law 1961[34],
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.
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[35] 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 Repeal
of Laws
The following Laws are repealed –
(a) the
Loi (1895) modifiant le droit criminel[36];
(b) the
Loi (1915) modifiant le droit criminel[37];
(c) the
Loi (1938) modifiant le droit criminel (sodomie et bestialité)[38];
(d) the
Sexual Offences (Jersey) Law 2007[39].
46 Amendments
of other enactments
(1) The
Protection of Children (Jersey) Law 1994[40], the Marriage and Civil
Status (Jersey) Law 2001[41] and the Sex Offenders
(Jersey) Law 2010[42] are amended in accordance
with the Schedule.
(2) 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.
47 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.
48 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.
49 Citation
and commencement
This Law may be cited as the Sexual Offences (Jersey) Law 2018
and comes into force on such day or days as the States may by Act appoint.
l.-m. hart
Deputy Greffier of the States