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PROTECTING CHILDREN FROM SEXUAL HARM: ANALYSIS OF CONSULTATION RESPONSES

EXECUTIVE SUMMARY

A Scottish Executive Justice Department consultation on Protecting Children from Sexual Harm took place between 2 July 2004 and 24 September 2004. A consultation paper was issued to which 71 responses were received from a range of individuals and organisations with an interest in improving the protection of children.

This report presents an analysis of the responses to the consultation. The findings will inform the development of proposed changes to the law to include in the forthcoming Protection of Children and Prevention of Sexual Offences (Scotland) Bill.

Despite a relatively modest volume of submissions, the response to the consultation was encouraging in terms of the participation of a variety of organisations from several different statutory and voluntary sectors. No obvious gap in respondent category was identified although it may have been useful to have encouraged more response from representative youth groups.

The consultation document highlighted specific issues on which views were particularly invited. These were:

• Proposed legislation which would make it an offence to meet or travel to meet children for the purposes of committing a sexual offence, following grooming behaviour
• A proposal for Risk of Sexual Harm Orders which are aimed at protecting children from those who display inappropriate sexual behaviour towards them
• The further use of Sexual Offence Prevention Orders, so that they can be applied to those convicted of sex offences by the court when they are sentenced

Consultees were also given the opportunity to highlight any other issues in relation to grooming a child for sexual exploitation that should be taken into consideration in the proposed Bill.

SUMMARY OF VIEWS EXPRESSED

Proposed Legislation Contained in Section 1 of the Draft Bill ( Chapter 3)

Q1: DOES THE NEW OFFENCE SET OUT IN SECTION 1 OF THE ATTACHED DRAFT BILL ACHIEVE THE OBJECTIVE OF ENSURING THAT POTENTIAL SEX OFFENDERS MEETING OR TRAVELLING TO MEET A CHILD FOLLOWING GROOMING BEHAVIOUR CAN BE PROSECUTED?

• Most respondents, whilst generally welcoming and supporting the intent of the proposed new Sexual Grooming offence, expressed reservations about its effectiveness in practice.
• Many consultees predicted that it could be hard to achieve successful prosecutions, largely on account of difficulties in proving intent to sexually harm a child.
• A recurring theme was that successful prosecutions would require the co-operation of various parties, including the child and their family to support the police.
• Recommendations were made to tighten the criteria for establishing the new offence in order to address concerns that innocent people going about their routine work may inadvertently be criminalised.
• Many consultees felt that it should not be necessary to demonstrate at least 2 prior communications between an adult and a child as even one previous communication may be sufficient for a perpetrator to gain a child's trust.
• Several respondents made suggestions for improvements to the proposals including widening the criteria to cover the travel of a child to meet the perpetrator, allowing for cultural differences in practices, addressing those who sought contact with a child for their own sexual gratification (despite not arranging to meet the child), incorporating grooming behaviour within a household (where no travel may be involved) and framing the criteria around notions of what constitutes "reasonable" behaviour.

Q2: DOES THE NEW OFFENCE STRIKE THE RIGHT BALANCE IN CRIMINALISING ACTIVITY WHICH INVOLVES GROOMING AND THEN MEETING OR TRAVELLING TO MEET A CHILD? OR SHOULD OTHER ACTIVITIES COMPRISE THE CRIMINAL OFFENCE?

• Of those who provided a clear view, 62% considered that the right balance had been struck in criminalising activity which involves grooming and then meeting or travelling to meet a child. Thirty-eight per cent argued that an appropriate balance had yet to be found.
• A range of other activities was suggested to comprise the criminal offence, including internet contact with the child for the purposes of adult sexual gratification and grooming of vulnerable parents to gain access to their child.

Q3: IS THE PROPOSED PENALTY SET AT THE RIGHT LEVEL?

• Of those who provided a clear opinion, 87% agreed with the proposed penalty levels.
• However, several of these respondents qualified their support by recommending that specific requirements should be attached to the penalties.
• Amongst the minority who criticised the proposed level of penalties, the maximum imprisonment term under summary procedure was considered too short, whilst there were mixed views regarding the proposed penalty under solemn procedure.

Q4: IS 18 THE RIGHT MINIMUM AGE FOR THE OFFENDER OR SHOULD IT BE, FOR EXAMPLE, 16?

• Of those who provided a clear indication of their view, 69% recommended that the minimum age for the offender should be set at 16 years, 27% considered that 18 years was appropriate and 4% could not arrive at a consensus on minimum age.
• The most prevalent rationale for advocating a reduction in the minimum age to 16 years was that some 16 and 17 year olds may pose a significant risk in terms of perpetrating grooming behaviours.
• Many of those recommending a minimum age of 18 years wanted to avoid criminalising young people who may not have yet reached full maturity and were emotionally under-developed.
• Criticism was levelled at what were perceived to be inconsistencies in minimum ages across different Scottish legislation.

Risk of Sexual Harm Orders ( Chapter 4)

Q5: WOULD RISK OF SEXUAL HARM ORDERS BE A USEFUL MEASURE IN PREVENTING SEX OFFENCES AGAINST CHILDREN?

• The main benefits of the RSHO were seen as their potential for early arrest of risky behaviour; as a deterrent for would be offenders; their flexibility to include additional conditions; and to bridge a gap where prosecution is awaited or has proved to be difficult.
• Concerns regarding the use of the RSHO included inadvertently including innocent parties going about their legitimate business as qualifiers for the order; potential legal challenges to their use largely on Human Rights grounds; overuse of the order as an alternative to prosecution; and the need to resource its use and enforcement adequately.
• A recurring theme was the need for thorough inter-agency work to prepare robust evidence on which to base decisions on imposing the order.
• Many respondents requested further clarification on points of detail regarding the RSHO.
• Several consultees recommended that the minimum age at which an individual could qualify for an RSHO should be reduced to 16 years.

Q6: DOES THE PROPOSED LIST OF TRIGGER BEHAVIOUR COVER ALL RELEVANT ACTIVITIES THAT MIGHT PROMPT APPLICATION FOR A RSHO?

• 24% of respondents who commented made a suggestion for expanding the proposed list of relevant activities that might prompt an application for an RSHO.
• A wide range of additional activities was suggested including all forms of contact by mobile phone, the giving of gifts, lying about identity and age, blackmailing, threatening, making specific promises and use of violent or aggressive images which may have a sexual connotation.
• Many respondents challenged the proposed requirement that prior to an RSHO application, sexual behaviour would need to have taken place on at least 2 occasions.
• Consultees expressed concern that legitimate adult behaviour may be captured within the net of trigger activities proposed.

Sexual Offences Prevention Orders ( Chapter 5)

Q7: SHOULD THE USE OF SEXUAL OFFENCES PREVENTION ORDERS BE EXTENDED TO ALLOW THEM TO BE IMPOSED AT THE TIME OF SENTENCING?

• All but one of the 55 respondents who provided a view supported the proposal to allow SOPOs to be imposed at time of sentencing.
• The key benefits to this proposal were cited as enabling prompt and well-informed action by the court with the opportunity to tailor the order for different offenders using a variety of conditions. Benefit for victims and savings in legal aid costs were also foreseen.
• Potential problems raised by consultees focused on the extra resources which they envisaged would be required to monitor and enforce the order and concern regarding the combining of criminal and civil legislation at the time of sentencing.
• Many respondents suggested that social workers should be encouraged to consider SOPOs as a matter of routine in their SERs with a multi-agency input to providing the sentencer with background detail advocated.

Other Issues to take into Consideration in the Proposed Bill ( Chapter 6)

Q8: ARE THERE ANY OTHER ISSUES IN RELATION TO GROOMING A CHILD FOR SEXUAL EXPLOITATION THAT WE SHOULD TAKE INTO CONSIDERATION IN THE PROPOSED BILL?

• The omission in the proposals most frequently identified by respondents was the lack of reference to vulnerable adults, irrespective of their age, as victims of grooming.
• Amongst the other perceived omissions were the need to address the grooming of a child by one adult for another, grooming behaviour within a household, the interface of the proposed procedures with the Children's Hearing system and methods of grooming which are not obviously sexual in nature.
• It was suggested that the law should be constantly monitored and reviewed to keep up to date with technological advances and close any developing loopholes.
• Consultees raised a number detailed language and technical points and sought clarification on a variety of specific issues.

Additional Comments ( Chapter 7)

• Several respondents expressed praise for the overall approach and aims of the proposals.
• There were mixed views on the extent of the need to harmonise the relevant legislation between Scotland and England and Wales
• A key theme to emerge was that the legislation by itself was not enough to tackle the problem of child sexual abuse.
• An overwhelming call was made for continued public awareness and educative initiatives aimed at informing people of the relevant issues and threats to children.
• Recommendations were made for parents and for internet providers to take on more of the responsibility for guarding against inappropriate use of the internet.
• A recurring comment was for the legislation to be underpinned by appropriate, long-term funding.
• The need to strike a balance between promoting sexual well-being and protecting against sexual harm was called for.

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