Sexual Offences
(Jersey) Law 2007
A LAW to make certain sexual acts
offences, to amend the law relating to certain sexual acts and for connected
purposes
Commencement
[see endnotes]
1 Interpretation
(1) In
this Law –
“1999 Law” means the
Education (Jersey) Law 1999[1];
“2002 Law” means the
Children (Jersey) Law 2002[2];
“image” means a
moving or still image and includes an image produced by any means and, where
the context permits, a three-dimensional image;
“Minister” means the
Minister for Home Affairs.
(2) In
this Law references to an image of a person include references to an image of
an imaginary person.
(3) For
the purposes of this Law, touching includes touching –
(a) with any part of the body;
(b) with anything else;
(c) through anything.
(4) For
the purposes of this Law, touching or any other activity is sexual if a
reasonable person would consider that –
(a) whatever its circumstances or any
person’s purpose in relation to it, it is because of its nature sexual;
or
(b) because of its nature it may be sexual and
because of its circumstances or the purpose of any person in relation to it (or
both) it is sexual.
2 Meeting
a child following sexual grooming etc.
(1) A person aged 18
or over (A) commits an offence if –
(a) having met or
communicated with another person (B) on at least 2 earlier occasions,
A –
(i) intentionally
meets B, or
(ii) travels with the
intention of meeting B in any part of the world;
(b) at the time, A intends
to do anything to or in respect of B, during or after the meeting and in any
part of the world, which if done will involve the commission by A of a relevant
offence;
(c) B is under 16; and
(d) A does not reasonably
believe that B is 16 or over.
(2) In paragraph (1),
the reference to A having met or communicated with B is a reference to A having
met B in any part of the world or having communicated with B by any means from,
to or in any part of the world.
(3) The Schedule shall have
effect to specify what is a relevant offence for the purposes of
paragraph (1)(b).
(4) A person guilty of an offence
under this Article shall be liable to imprisonment for a term of 10 years and
to a fine.
3 Abuse
of position of trust: sexual activity with a child
(1) A person aged 18
or over (A) commits an offence if –
(a) A intentionally touches
another person (B);
(b) the touching is sexual;
(c) A is in a position of
trust in relation to B;
(d) where
paragraph (2) applies, A knows or could reasonably be expected to know of
the circumstances by virtue of which he or she is in a position of trust in
relation to B; and
(e) either –
(i) B is
under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 15.
(2) This paragraph applies
where A –
(a) is in a position of
trust in relation to B by virtue of circumstances within Article 7(2),
(3), (4) or (5), and
(b) is not in such a
position of trust by virtue of other circumstances.
(3) Where in proceedings
for an offence under this Article it is proved that the other person was
under 18, the defendant is to be taken not to have reasonably believed that
that person was 18 or over unless sufficient evidence is adduced to raise
an issue as to whether the defendant reasonably believed it.
(4) Where
in proceedings for an offence under this Article –
(a) it is proved that the
defendant was in a position of trust in relation to the other person by virtue
of circumstances within Article 7(2), (3), (4) or (5), and
(b) it is not proved that
the defendant was in such a position of trust by virtue of other circumstances,
it
is to be taken that the defendant knew or could reasonably have been expected
to know of the circumstances by virtue of which he or she was in such a
position of trust unless sufficient evidence is adduced to raise an issue as to
whether the defendant knew or could reasonably have been expected to know of
those circumstances.
(5) A person guilty of an
offence under this Article shall be liable to imprisonment for a term of 5
years and to a fine.
4 Abuse
of position of trust: causing or inciting a child to engage in sexual activity
(1) A person aged 18
or over (A) commits an offence if –
(a) A intentionally causes
or incites another person (B) to engage in an activity;
(b) the activity is sexual;
(c) A is in a position of
trust in relation to B;
(d) where
paragraph (2) applies, A knows or could reasonably be expected to know of
the circumstances by virtue of which A is in a position of trust in relation to
B; and
(e) either –
(i) B is
under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 15.
(2) This paragraph applies where
A –
(a) is in a position of
trust in relation to B by virtue of circumstances within Article 7(2),
(3), (4) or (5); and
(b) is not in such a position of trust by virtue
of other circumstances.
(3) Where in proceedings
for an offence under this Article it is proved that the other person was
under 18, the defendant is to be taken not to have reasonably believed
that that person was 18 or over unless sufficient evidence is adduced to
raise an issue as to whether the defendant reasonably believed it.
(4) Where in proceedings
for an offence under this Article –
(a) it is proved that the
defendant was in a position of trust in relation to the other person by virtue
of circumstances within Article 7(2), (3), (4) or (5), and
(b) it is not proved that
the defendant was in such a position of trust by virtue of other circumstances,
it
is to be taken that the defendant knew or could reasonably have been expected
to know of the circumstances by virtue of which he or she was in such a
position of trust unless sufficient evidence is adduced to raise an issue as to
whether the defendant knew or could reasonably have been expected to know of
those circumstances.
(5) A person guilty of an
offence under this Article shall be liable to imprisonment for a term of 5
years and to a fine.
5 Abuse
of position of trust: sexual activity in the presence of a child
(1) A person aged 18
or over (A) commits an offence if –
(a) A intentionally engages
in an activity;
(b) the activity is sexual;
(c) for the purpose of
obtaining sexual gratification, A engages in it –
(i) when another
person (B) is present or is in a place from which A can be observed, and
(ii) knowing or
believing that B is aware, or intending that B should be aware, that A is
engaging in it;
(d) A is in a position of
trust in relation to B;
(e) where
paragraph (2) applies, A knows or could reasonably be expected to know of
the circumstances by virtue of which A is in a position of trust in relation to
B; and
(f) either –
(i) B is
under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 15.
(2) This paragraph applies
where A –
(a) is in a position of
trust in relation to B by virtue of circumstances within Article 7(2),
(3), (4) or (5); and
(b) is not in such a
position of trust by virtue of other circumstances.
(3) Where in proceedings
for an offence under this Article it is proved that the other person was
under 18, the defendant is to be taken not to have reasonably believed
that that person was 18 or over unless sufficient evidence is adduced to
raise an issue as to whether the defendant reasonably believed it.
(4) Where in proceedings
for an offence under this Article –
(a) it is proved that the
defendant was in a position of trust in relation to the other person by virtue
of circumstances within Article 7(2), (3), (4) or (5); and
(b) it is not proved that
the defendant was in such a position of trust by virtue of other circumstances,
it
is to be taken that the defendant knew or could reasonably have been expected
to know of the circumstances by virtue of which he or she was in such a
position of trust unless sufficient evidence is adduced to raise an issue as to
whether the defendant knew or could reasonably have been expected to know of
those circumstances.
(5) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 5 years and to a fine.
6 Abuse
of position of trust: causing a child to watch a sexual act
(1) A person aged 18
or over (A) commits an offence if –
(a) for the purpose of
obtaining sexual gratification, A intentionally causes another person (B) to
watch a third person engaging in an activity, or to look at an image of any
person engaging in an activity;
(b) the activity is sexual;
(c) A is in a position of
trust in relation to B;
(d) where paragraph (2)
applies, A knows or could reasonably be expected to know of the circumstances
by virtue of which A is in a position of trust in relation to B; and
(e) either –
(i) B is
under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 15.
(2) This paragraph applies
where A –
(a) is in a position of
trust in relation to B by virtue of circumstances within Article 7(2),
(3), (4) or (5); and
(b) is not in such a
position of trust by virtue of other circumstances.
(3) Where in proceedings
for an offence under this Article it is proved that the other person was
under 18, the defendant is to be taken not to have reasonably believed
that that person was 18 or over unless sufficient evidence is adduced to
raise an issue as to whether the person reasonably believed it.
(4) Where in proceedings
for an offence under this Article –
(a) it is proved that the
defendant was in a position of trust in relation to the other person by virtue
of circumstances within Article 7(2), (3), (4) or (5); and
(b) it is not proved that
the defendant was in such a position of trust by virtue of other circumstances,
it
is to be taken that the defendant knew or could reasonably have been expected
to know of the circumstances by virtue of which he or she was in such a
position of trust unless sufficient evidence is adduced to raise an issue as to
whether the defendant knew or could reasonably have been expected to know of
those circumstances.
(5) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 5 years and to a fine.
7 Positions
of trust
(1) For the purposes of
Articles 3 to 6, a person (A) is in a position of trust in relation to
another person (B) if –
(a) any of the following
paragraphs applies; or
(b) any condition specified
in an Order made by the Minister is met.
(2) This paragraph applies
if A looks after persons under 18 who are detained in an institution by
virtue of a court order or under an enactment, and B is so detained in that
institution.
(3) This paragraph applies
if A looks after persons under 18 who are resident in –
(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 2002 Law; or
(b) a voluntary home, within
the meaning of the 2002 Law,
and
B is resident, and is so provided with accommodation and maintenance, or
accommodated, in that place.
(4) This paragraph applies
if A looks after persons under 18 who are accommodated and cared for in
one of the following institutions –
(a) a hospital within the
meaning of the 2002 Law; or
(b) a home to which the
Nursing and Residential Homes (Jersey) Law 1994[3] applies;
and
B is accommodated and cared for in that institution.
(5) This paragraph applies
if A looks after persons under 18 –
(a) who are receiving education at a school,
within the meaning of the 1999 Law and B is receiving, and A is not
receiving, education at that school; or
(b) who are cared for at registered day care premises,
within the meaning of the Day Care of Children (Jersey) Law 2002[4], and B is cared for at those premises.
(6) This paragraph applies
if A is appointed as –
(a) the guardian of B,
under Article 7 of the 2002 Law; or
(b) B’s tuteur;
(7) This paragraph applies
if A is engaged in the provision of services provided by the Minister for
Education to enable or assist participation by persons under the age of 16
in education or training and, in that capacity, looks after B on an individual
basis.[5]
(8) This paragraph applies
if A regularly has unsupervised contact with B (whether face to face or by any
other means) –
(a) in the exercise of
functions of the Minister for Health and Social Services under Article 17
or 18 of the 2002 Law;
(b) in the exercise of
functions for the provision of publicly provided accommodation for the purposes
of Article 36 of the Police Procedures and Criminal Evidence (Jersey)
Law 2003[6].
(9) This paragraph applies
if A, who is to report to the court under Article 9 of the 2002 Law
on matters relating to the welfare of B, regularly has unsupervised contact
with B (whether face to face or by any other means).
(10) This paragraph applies if A
is an officer in an administration of the States for which the Minister for
Health and Social Services is assigned responsibility, the Minister delegates
to A the Minister’s functions under Article 21 of the 2002 Law
and A, in the discharge of those functions, advises and assists B and looks
after B on an individual basis.
(11) This paragraph applies if A
is an officer in an administration of the States for which the Minister for
Health and Social Services is assigned responsibility to whom the Minister
delegates the discharge of the functions imposed on the Minister in relation to
B by an order made under Article 12 of the Adoption (Jersey) Law 1961[7].
(12) This paragraph applies
if –
(a) B is subject to a care
order or supervision order, within the meaning of the 2002 Law, or an
education supervision order within the meaning of the 1999 Law; and
(b) in the exercise of
functions conferred by virtue of the order on an authorized person or the
authority designated by the order, A looks after or supervises B on an
individual basis.
(13) This paragraph applies if
A –
(a) is a person appointed
for B under Article 75(1)(b) or (2)(b) of the 2002 Law;
(b) is appointed to be the
guardian ad litem of B under Article 18(6) of the Adoption (Jersey)
Law 1961; or
(c) is appointed to be the
guardian ad litem of B under rule 51 of the Matrimonial Causes Rules 2005[8],
and,
in that capacity, regularly has unsupervised contact with B (whether face to
face or by any other means).
(14) This paragraph applies
if –
(a) B is subject to
requirements imposed by or under an enactment on his or her release from
detention for a criminal offence, or is subject to requirements imposed by a
court order made in criminal proceedings; and
(b) A looks after B on an
individual basis in pursuance of the requirements.
8 Positions
of trust: interpretation of Article 7
(1) The following
provisions apply for the purposes of Article 7.
(2) Subject to
paragraph (3), a person looks after persons under 18 if he or she is
regularly involved in caring for, training, supervising or being in sole charge
of such persons.
(3) A person (A) looks
after another person (B) on an individual basis if –
(a) A is regularly involved
in caring for, training or supervising B; and
(b) in the course of
A’s involvement, A regularly has unsupervised contact with B (whether
face to face or by any other means).
(4) A person receives
education at a school, within the meaning of the 1999 Law, if –
(a) the person is
registered or otherwise enrolled as a pupil or student at the school, or
(b) the person receives
education at the school under arrangements with another school at which he or
she is so registered or otherwise enrolled.
9 Articles 3
to 6: marriage exception
(1) Conduct by a person (A)
which would otherwise be an offence under any of Articles 3 to 6 against
another person (B) is not an offence under that Article if at the
time –
(a) B is 16 or over; and
(b) A and B are lawfully
married.
(2) In proceedings for such
an offence it is for the defendant to prove that A and B were lawfully married
at the time.
10 Articles 3
to 6: sexual relationships which pre-date position of trust
(1) Conduct by a person (A)
which would otherwise be an offence under any of Articles 3 to 6 against
another person (B) is not an offence under that Article if, immediately before
the position of trust arose, a sexual relationship existed between A and B.
(2) Paragraph (1) does not
apply if at that time sexual intercourse between A and B would have been
unlawful.
(3) In proceedings for an
offence under any of Articles 3 to 6 it is for the defendant to prove that
such a relationship existed at that time.
11 Articles 3
to 6: aiders, abettors, etc.
A person who aids, abets, counsels
or procures the commission of an offence under any of Articles 3 to 6
shall also be guilty of the offence and liable in the same manner as a
principal offender to the penalty provided for that offence.
12 Amendment
of law relating to sodomie
(1) Notwithstanding
any rule of customary law or any other enactment, a person shall not be guilty
of the crime of sodomie
if –
(a) the act is committed in private; and
(b) each of the parties to the act consents and
is 16 or over.
(2) Notwithstanding
any rule of customary law or any other enactment, a person under 16 shall
not be guilty of the crime of sodomie if the other party to the act is 16
or over.
(3) An
act of sodomie shall not be treated as taking
place in private if it takes place in a lavatory to which the public have, or
are permitted to have, access, whether on payment or otherwise.
(4) In
any proceedings for the crime of sodomie, it shall be for the prosecution to prove
that the act of sodomie took place otherwise
than in private or that one of the parties is under 16.
(5) A
person requiring special care cannot give any consent which, by virtue of
paragraph (1), would prevent an act of sodomie
from being a crime.
(6) Notwithstanding
paragraph (5), a person shall not be convicted, on account of the
incapacity of a person requiring special care to consent, of a crime of sodomie if
the first-mentioned person proves that he or she did not know, and had no
reason to suspect, that the other person was a person requiring special care.
(7) In
this Article, “person requiring special care” has the same meaning
as in the Mental Health (Jersey) Law 1969[9].
13 Citation
This Law may be cited as the Sexual
Offences (Jersey) Law 2007.