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PROTECTING CHILDREN FROM SEXUAL HARM: ANALYSIS OF CONSULTATION RESPONSES

CHAPTER 3: PROPOSED LEGISLATION CONTAINED IN SECTION 1 OF DRAFT BILL

The consultation stated:

The Executive is clear that the law needs to be strengthened in this area with the aim of protecting children from sexual harm. We therefore attach a draft Bill…The provisions of this draft Bill are intentionally similar to those adopted in England and Wales by the Sexual Offences Act 2003. This has the advantage that the law is clear throughout the United Kingdom and is evidence of our determination to work together to protect our children. We are however aware that our different legal tradition in Scotland may prompt a different approach in some areas, and identifying the need for any variations in approach is one of the key purposes of this consultation.

To tackle predatory sexual behaviour of grooming both on- and off-line, we propose to introduce a new offence of Sexual Grooming with a maximum penalty of 10 years imprisonment. It will be designed to catch those aged 18 or over who undertake a course of conduct with a child under 16 leading to a meeting where the adult intends to engage in sexual activity with a child. It will enable action to be taken before any sexual activity takes place where it is clear that this is what the offender intends.

The consultation asked:

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?

The vast majority of respondents (87%) provided commentary in response to this question. Some articulated what they saw as the particular benefits of the proposals such as preventing physical harm from taking place (Vol), the focus on and acknowledgement of the process of grooming (Vol), the range of the legislation extending to other parts of the world (2 Vol) and bringing Scottish legislation in line with that of England and Wales (LA, Leg).

Effectiveness in Practice

Only one respondent (Pol) expressed a clear "doubt" that the new offence would achieve its stated objective and remarked that evidence from England suggested that the legislation would be of little practical use. However, many of the others, whilst generally supporting the intent of the proposed legislation, expressed reservations about its effectiveness in practice. One comment captured the opinions of many respondents:

" In introducing legislation to the Scottish Parliament it is important that the detail is not only well intentioned but will actually work to improve the protection of children" (Vol)

The view most frequently expressed view was that whilst the proposal to create a new offence of sexual grooming was very much welcomed, respondents could foresee difficulties in achieving successful prosecutions. Many commentators argued that proving intent to physically harm a child would be challenging (Indiv, 5 LA, Legal). One remark was that evidence may not be "tangible" (LA), another that the offence relied on inference from behaviour which may easily be shown to have an innocent explanation (Legal).

Several respondents considered that the perpetrators of grooming behaviour would become increasingly adept at circumventing the new legislation in order to carry on their grooming practices without prosecution. Some argued that it may be very difficult to disprove that the accused thought the child to be 16 or over (4 LA). Others highlighted the "secrecy" usually surrounding the grooming activity and suggested that perpetrators would go to significant lengths to conceal their behaviour (2 LA) for example by ensuring that they left a trail of only one lengthy communication with the child, or by travelling without any incriminating evidence on them (Faith). A few respondents commented that the offence may be difficult to ascertain unless the communication between the accused and the child was high in sexual content (3 LA).

A recurring theme was that successful prosecutions would require the co-operation of various parties to support the police. This could involve the child's parents and possibly the child (Pol) who it was suggested would require support from the police and counselling services before, during and after any operation to apprehend a perpetrator (2 LA). To maximise help from such third parties, a few respondents highlighted the need for extensive publicity of the new offence (LA, Educ). Gathering of evidence from Internet Service Provider (ISP) records was considered of limited value by one respondent (Bus) who explained that it was unlikely that ISPs would retain the content of emails or chat-room sessions for the length of time which would normally elapse between the initial contact between adult and child and the reporting of the crime to the police.

Many respondents remained very cautious about predicting the future effectiveness of the legislation. For example, it was thought that the offence would be difficult to prove without the use of surveillance techniques (Pol) which may require specialist police input (LA) and may lead to accusations of police "entrapment" of the accused (LA). In addition, one view was that to commence surveillance, the identity of the adult would have to be ascertained and within the context of grooming of children this could be particularly difficult (LA).

However, one respondent summed up the mood of several consultees in remarking that even though the offence may be difficult to prove in practice, the creation of the offence should be welcomed as it will send out a clear message that such behaviour is not acceptable and this may be enough to deter some potential perpetrators (Vol).

Criteria for the New Offence

The consultation stated:

Section 1 makes it an offence for an adult aged 18 or over to meet intentionally, or to travel with the intention of meeting, a child aged under 16 in any part of the world, if the adult has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if the adult reasonably believes the child to be 16 or over.

The course of conduct prior to the meeting that triggers the offence, may but need not necessarily, have an explicitly sexual content.

The offence would be complete when, following the earlier contacts, the adult meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place. The evidence of the adult's intention to commit an offence may be drawn from the communications between the adult and the child before the meeting or may be drawn from other circumstances, for example if the adult travels to the meeting with condoms and lubricants."

The "criteria" for establishing the new offence of sexual grooming attracted much comment from consultees. A general concern expressed by several respondents, including an over-representation from the voluntary and educational sectors, was that a balance needed to be struck between enabling the intention to physically harm a child to be proved, but at the same time ensuring that innocent people going about their routine work were not criminalised. One respondent described how the range of behaviours used by paedophiles can often be within the range of behaviours that protective adults adopt when working with children and young adults. They thought that this could result in non-abusive adults being misunderstood and the:

"..unbearable stigma of investigation and possible criminalisation will put many men off from being involved with children and young people in a voluntary capacity" (Vol)

Likewise, other respondents remarked on the use of emails to children by many clubs, organisations and indeed absent parents and cautioned against curtailing the movements and communications of such innocent adults (LA) or the legitimate activities and travel of national and international associations of sports and social clubs (LA). It was argued that any youth worker attached to one of the numerous youth organisations across Scotland could be found guilty on the basis of several of the criteria on a daily basis but be perfectly innocent of any ill intent (Vol). Another concern was the possibility of the legislation criminalising the "natural sexual exploration" of consenting young adults aged, for example, 14/15 years and 18/19 years (Oth Pub).

A recommendation was made for the criteria to be tightened and made more rigorous in order to address what was perceived to be their current lack of clarity and to increase the protection of the innocent (Educ). A specific example was the case of a child initiating contact with an adult by accessing an innocent adult's website. Legislation was called for which spelled out that the adult needs to have actively pushed information to a child to come under suspicion (Indiv).

Several respondents made specific comments regarding some or all of the criteria included in the proposals. A general point was that it may be difficult to witness all 4 of the criteria listed in the proposals in order to secure a conviction (LA, Oth Pub). Indeed one consultee suggested that just 2 of the 4 elements could lead to a reasonable assumption that an offence against a child was intended (Vol). However, this respondent also recommended that other elements be considered - where an adult lies about their age (also supported by LA consultee) and where their previous conversations with the child have contained a sexual element. Another highlighted as an example the likely difficulty in securing a conviction in situations where there had been no previous sexual content in communication and the perpetrator was not in possession of any overtly sexual material (Pol).

Many consultees felt that it should not be necessary to demonstrate at least 2 prior communications with the child (4 LA, Pol, Vol, 2 Leg). This criterion was perceived as a possible and unnecessary "stumbling block" (LA) when one previous communication should suffice if all other criteria have been met (LA). One respondent warned against attaching any precise figure to the number of communications necessary prior to a charge (Pol) particularly if there are sufficient circumstantial evidence and background concerns to suggest that the particular adult presents a serious risk to a child. Another explained how even one previous communication may be sufficient for a perpetrator to gain a child or young person's trust (LA) with a further view that any reference to two communications should simply be deleted (Leg). One suggestion was that the criteria should be amended to indicate one prior communication in order to more accurately reflect some children's vulnerability and some perpetrators' skills in exploiting it (Leg).

Other respondents commented that the mode of prior communication between adult and child should be specified as including all forms of contact by mobile phone such as WAP (Indiv, LA) and text messaging (LA).

A few consultees highlighted their concern that the proposals appeared to associate the carrying of condoms with ill intent and criminalisation rather than responsible and normal behaviour (2 Oth Pub, Vol).

Questions Regarding the Proposed Offence

Respondents raised a small number of questions on which they sought clarity:

• If the offender travels to France to meet the child, would the offence be deemed to have been committed in Scotland? (Indiv)
• What constitutes "travelling to meet"? Purchase of the travel ticket? Embarking on the journey? (Leg)
• Is "reasonable belief" determined on the basis of a subjective or objective test? (Leg)
• What would be the legal situation where one adult grooms a child for another adult? (Leg)
• What would be the legal situation where the child is under 16 years when the grooming behaviour commences and is 16 years when the perpetrator travels to meet them? (Oth Pub, Vol)

Suggestions for Improvements

Many respondents made suggestions for amendments to the draft. One recommendation was for the criteria to cover the travel of a child to meet the perpetrator at the perpetrator's request (2 LA). Another was for the legislation to allow for cultural differences so that an adult man who perceived himself to be validly married to a woman under the age of 16 years should be protected (Oth Pub).

One consultee argued for the legislation to go further and address those who, even though they did not travel to meet the child, nevertheless sought contact with the child for their own sexual gratification, a behaviour which they thought could have a significant effect on a child (LA). A supporting view was that if previous communications between an adult and child had a sexual content then it could be argued that such behaviour could constitute an offence in itself (LA).

One comment was that preventative offences are notoriously difficult to prove and that perhaps the draft could be informed by S57 and S58 of the Civic Government (Scotland) Act 1982 which incorporated wording: "so that in all the circumstances it may be reasonably inferred that he intended to commit a "relevant offence" (sic) there". In relation to S58, inference can be made from the character of the accused in addition to the circumstances (LA). Another suggestion was for the offence to be framed around notions of "reasonableness" - for example, when it could be reasonably expected for an adult to state their age (even within a banded range) in communications with a child, when there is a reasonable explanation for communication/contact with a child (Indiv). A call was made for the Scottish Executive to issue Guidelines on how to prove or quantify intent (Vol).

Finally, a call was made for the definition of grooming to incorporate grooming behaviour taking place within a household and/or by already trusted adults (Oth Pub).

Other Comments

A range of other relevant comments were made. One respondent considered that successful prosecutions may have implications for both human rights and for use of appropriate technology (LA). Implications for legal aid were highlighted by another with the prediction that criminal legal aid costs may rise as the complexity of the cases may well require more preparation and involve child witnesses (Leg). Another remarked that implementing the legislation may be problematic if the police are not appropriately resourced (Vol). One consultee considered although the legislation appeared to go far in addressing the problem of grooming, this should go hand in hand with developing support mechanisms for tackling the offending behaviour (Vol).

One viewpoint was that the offences listed in Part 1 of the Schedule included (though not exclusively) offences which also fall into the definition of Schedule 1 offences in the Criminal Procedure (Scotland) Act 1995. The consultee recommended that the new offence is itself incorporated into the definition of a Schedule 1 offence in order that the protection available to children via S52(2)(d) to (g) of the Children (Scotland) Act 1995 be extended to include the risk from perpetrators of this offence (Leg).

Another recommendation was for a requirement that the new offence be registerable under the Sex Offenders Act 1997 (LA, Leg).

The consultation stated:

The offence aims to strike a balance in criminalising activity where it has become clear that there is an intention to commit a sexual offence without at the same time criminalising those who might engage in fantasy and use of false identity on the internet without seeking to gain any criminal or other advantage from doing so. It is for this reason that the offence becomes complete when an adult meets or travels to meet a child following grooming activity, and that what might be perceived as grooming activity is not sufficient itself for the offence to have been committed.

The consultation asked:

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?

To some extent the responses to this question overlapped with those provided in response to the previous question, for example, comments regarding perceived difficulty in proving intent and comments relating to the criteria for the new offence applied to both. However, 49 respondents (69%) appeared to address the specific issue of balance in criminalising such activity with 34 of these respondents providing a clear view on whether the offence does strike the right balance in criminalising activity which involves grooming and then meeting or travelling to meet a child. Amongst these 34 respondents, 21 (62%) considered that the right balance had been struck with 13 (38%) arguing that an appropriate balance had yet to be found. The remaining 15 respondents provided comment without giving a clear indication on the issue of balance.

Four respondents considered that such a balance was difficult to achieve (4 LA). Those providing a clear indication that in their view the right balance had been struck represented a wide range of different respondent sectors. In general, little commentary was offered to support this view. However, a few respondents provided clear arguments, for example:

" the second leg of the offence stated in S1(a)(i) and (ii) involving meeting or travelling to meet ensures the distinction is made which marks a perpetrator from a fantasist" (Leg)

Another consultee argued that the Act is clear that giving a false identity and the indulging in fantasy, which does not lead to any other contact, is not an offence and that one would have to prove that the false identity in itself was clearly a precursor to meeting or intending to offend which may not always be the case. They continued that although the giving of a false identity to communicate with a child is always potentially abusive it may not always be (LA).

Amongst those who suggested that the appropriate balance had yet to be found, 4 main themes emerged in their responses:

• Adult sexual fantasies could be damaging to children - (LA, Indiv, Vol) and where " their deeds or words could corrupt a minor", this should be covered by this Bill (Indiv).
• The offence should not require the travelling to meet or meeting the child - it should comprise earlier stage activities, perhaps where the meeting is arranged (2 Pol, LA), activity prior to any travel (Indiv, LA), with more emphasis on the earlier grooming activity, particularly the content of the communication (2 Indiv).
• The proposals should be tightened to avoid criminalising legitimate activities - by more careful wording (2 LA) or a closer association of "grooming" with " a clear intention to commit a sexual act" (Educ).
• The criteria for the offence appear to be unnecessarily prescriptive and do not allow for flexibility to consider other conduct which may be liable to lead to the offence (LA).

Should Other Activities Comprise the Criminal Offence?

A range of other activities was suggested, largely by local authority respondents. Other activities were recommended in response to question 1 and have been reported as appropriate above.

Contact via the internet for the sexual gratification of the adult or other adults was proposed as a further activity for consideration (LA). Another suggestion was for the grooming of vulnerable parents to gain access to their child (LA). A few respondents requested that the term "intends to engage in sexual activity with a child" in paragraph 16 of the consultation document should be replaced with "intends to engage in sexual harm with a child" (3 LA). A call was made for the legislation to allow for closer scrutiny of the suspicious activities to enable a better understanding of their pattern (LA). For example, it was argued that grooming may comprise communication about the child's love of animals in order to gain the child's trust.

One recommendation was for greater clarity in defining precisely what in previous communications could be included as incriminating evidence (LA). Another suggestion was that having regular contact prior to arranging a meeting could constitute an offence, dependent upon the nature and content of the contact (Educ). Finally, one respondent stated that other activities should comprise the criminal offence in order to help establish proof of "intent", but was unable to offer any suggestions for candidates (LA).

Section 1(3) of the draft Bill stated:

A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both:

(b) on conviction on indictment, to imprisonment for a term not exceeding ten years or a fine or both.

The consultation asked:

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

Overall, fifty consultees (70%) provided a response to the question. Of these, 47 provided a clear opinion on the level of penalties proposed with the vast majority (87%) endorsing them. A few respondents remarked that the level set would send out a strong message and provide a suitable deterrent to would be perpetrators (Leg, LA, Educ). One view was that the level was commensurate with other statutory offences involving sexual abuse (Pol). Another comment was that the proposals offered the flexibility to penalise according to the severity of the crime (Educ).

Several of those in favour of the levels of penalty proposed qualified their support by recommending, for example, that the penalty be accompanied by the requirement to participate in a treatment programme (2 Vol), by a risk management plan (LA), by a Risk of Sexual Harm Order (RSHO) (LA) or by a RSHO and the stipulation that the offender should not enter chat-rooms or use the internet (LA). Others recommended that in addition to the penalty, the offender should be placed on the sex offender register (3 LA, Oth Pub). Finally, one respondent, although favouring the proposals, remarked on what they perceived to be the large difference between levels set in summary and solemn proceedings and recommended that this be re-examined (Vol).

Amongst the minority of respondents (13% of those who provided a clear view) who criticised the proposed level of penalties, some considered the level for summary conviction to be too short (Indiv, LA, Vol). It was argued that offenders may serve only half of the sentence originally imposed (Indiv) and the length of imprisonment would give little time to address the offender's behaviour (Vol). One suggestion was for the proposed penalty for summary conviction to be replaced by electronic tagging or some restraining order (Faith).

Views on the penalty level proposed for conviction on indictment were mixed. One argument was that the level should be higher in order to be consistent with the 14 years maximum in England (2 LA). However, a contrasting view was that the proposed level may be too high as the offence did not involve any physical contact (Indiv) and the current penalties imposed for sex offending appeared to be considerably lower (Indiv).

A few more general comments were made. One respondent described their difficulty in responding in that the circumstances of referral to either solemn or summary courts had not been spelled out in the consultation document (LA). This consultee also highlighted the challenge to sentencing created in situations where the risk the offender posed may be greater than the actual offence committed. One respondent requested clarification on the penalties available for those charged with offences against 16-18 year olds (Educ).

Two respondents demanded that penalties should be harsh, with courts encouraged to give prison sentences (Oth Pub) and treat the offending with the utmost severity to reflect the high degree of premeditation and breach of trust involved (Vol). It was suggested that penalties should be harsher where the victims are found to be vulnerable by virtue of, say, their learning difficulties or physical/sensory impairment (Vol).

The consultation asked:

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

Fifty-seven (80%) respondents addressed this question with 49 consultees providing a clear indication of their view on the minimum age of the offender. Of these, over two-thirds (69%) recommended that the minimum age for the offender should be set at 16 years. Just over one-quarter (27%) of those who provided a view considered that 18 years should be the minimum age, with the remaining 4% reporting their organisation's lack of consensus on the issue.

In Favour of Reducing Minimum Age

Amongst the majority of respondents who advocated reducing the minimum age for the offender to 16 years, the most prevalent rationale was that some 16 and 17 year olds may pose a significant risk in terms of perpetrating grooming behaviours. Examples were provided of situations where young people may target their friends' younger siblings (Indiv) or where a 17 year old man may groom a 5 year old girl (LA). It was argued that: children in the age range 10-15, typically boys are more than capable of grooming young children for sexual purposes and this ought to be criminalised (LA).

One consultee was of the view that sheriffs should be allowed to exercise discretion in deciding whether to hear a case in an adult court or whether to refer those aged between 16 and 17.5 years to the Children's Hearing system (Leg).

Another recurring rationale for reducing the minimum age to 16 years was in order to promote consistency with Scots Law and the age of sexual consent (2 Indiv, Educ, 3 Pol, LA, Faith). Others commented that 16 years was also the age at which young people could marry (LA) and may well be undertaking responsible tasks such as babysitting (Indiv).

Several respondents remarked on what they perceived to be an anomaly in the proposals in that according to the draft, 16 and 17 year olds could be neither victims nor perpetrators of sexual grooming (Faith, LA, Vol, Leg). One remark was that Children's Hearing system took care of children up to the age of 16 (Indiv) but the picture for dealing appropriately with perpetrators aged 17 years was less clear.

The view of one consultee was to reduce the minimum age to 16 years but for this younger age to be taken into account in dealing with the offence (LA).

In Favour of Maintaining 18 years as Minimum Age

A sizeable minority (27%) of those who provided a view argued for maintaining 18 years as the minimum age of offender. However, many of these respondents saw both pros and cons of this recommendation and their final decision represented a balance of their views.

One general comment was that the age of 18 years appeared appropriate, " to keep a clear distinction between adolescence and adulthood" (LA). Others supported the notion of trying to avoid criminalising young people who had not yet reached full maturity and were emotionally under-developed (2 LA, Vol). One respondent reported the argument from The Children's Charities Coalition for Internet Safety that people under 18 years should not be prosecuted (LA). Another advocated that offences committed by those under 18 years should be dealt with in a therapeutic and constructive manner, perhaps through the Children's Hearing system (Vol). One view was that there were existing organisations which could provide programmes for adolescent sex offenders (LA).

The issue of preserving consistency with other legislation was raised and given as a reason for maintaining 18 years as a minimum age (Indiv). Another view was that although 18 years was the preferred option, this perpetuated the mixed messages given in legislation regarding minimum ages (Leg).

Lack of Consensus Regarding Minimum Age

Two respondents reported that their respective organisations had not reached a consensus regarding this question. One suggested that serious consideration should be given to the possibility of prosecuting those aged 16 years and over in criminal courts (LA). The other recommended that perhaps those already known to the Children's Hearing system should continue to be dealt with by that route with others taken within the remit of the adult courts (Oth Pub).

Other Comments

Several respondents provided general comments relating to the issue of the minimum age of offending. One criticism was levelled that the Scottish Executive should not randomly change the definition of a child, or age at which maturity is reached with every piece of legislation it passes. The respondent illustrated their point stating that in Scotland the age of criminal responsibility is 8, the age of consent is 16, Anti-Social Behaviour Orders can not be imposed at 12, Disclosure Scotland checks can be carried out at 16, and the Protection of Children (Scotland) Act 2003 applies to anyone over 16 (LA)

Others considered that Scotland was not always in line with the United Nation Convention on the Rights of the Child which defines a child as under 18 years (2 Vol). A further view was that the minimum age should be consistent with that of other sex offending legislation (LA).

Several voluntary organisation consultees requested further clarification on how a 16 or 17 year old victim or perpetrator would be treated under the proposals (4 Vol). One stressed that there should be no age gap for an abuser to exploit (Vol). Guidance was requested on the specific role of the Children's Hearing system regarding offenders aged under 18 years (Vol).

Concerns were raised that legitimate boyfriend/girlfriend meetings taking place before any sexual act should not be criminalised by the legislation (LA, Vol, Oth Pub) with the suggestion made that some legislative safeguard was required to address this (LA).

Finally, a different perspective was provided by a few respondents who suggested that the notion of power differential between perpetrator and victim was more relevant than an arbitrary age limit (Pol, LA). One related comment was that should the minimum age be set at 16 years, there may be less of an age difference between the accused and the alleged victim making it harder to infer any abuse of power (Vol).

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