View source for Sexual Offences Act 2003

{{Short description|UK criminal law with explicit wording}}
{{Use British English|date=August 2025}}
{{Use dmy dates|date=July 2025}}
{{Infobox UK legislation
| short_title = Sexual Offences Act 2003<ref>The citation of this Act by this [[short title]] is authorised by [http://www.legislation.gov.uk/ukpga/2003/42/section/143 section 143] of this Act.</ref>
| type = Act
| year = 2003
| parliament = Parliament of the United Kingdom
| long_title = An Act to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes.
| citation = 2003 c. 42
| introduced_by =
| territorial_extent = [[England and Wales]]
| royal_assent = 20 November 2003
| commencement = 1 May 2004,<ref>The Sexual Offences Act 2003, [http://www.legislation.gov.uk/ukpga/2003/42/section/141 section 141]; the Sexual Offences Act 2003 (Commencement) Order 2004 (SI 2004/874), [http://www.legislation.gov.uk/uksi/2004/874/article/2/made article 2]; the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004 (SSI 2004/138), [http://www.legislation.gov.uk/ssi/2004/138/article/2/made article 2].</ref> except that sections 138 and 141 to 143 came into force on 20 November 2003<ref>These sections came into force on the date of royal assent because no other date was specified: The [[Interpretation Act 1978]], section 4(b)</ref>
| amends = {{ubli|[[Town Police Clauses Act 1847]]}}
| amendments = [[Children Act 2004]]<br />[[Civil Partnership Act 2004]]<br />[[Domestic Violence, Crime and Victims Act 2004]]<br />Management of Offenders etc. (Scotland) Act 2005<br />[[Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005]]<br />[[Serious Organised Crime and Police Act 2005]]<br />[[Armed Forces Act 2006]]<br />[[Police, Public Order and Criminal Justice (Scotland) Act 2006]]<br />[[Violent Crime Reduction Act 2006]]<br />[[Serious Crime Act 2007]]<br />[[Children and Young Persons Act 2008]]<br />[[Criminal Justice and Immigration Act 2008]]<br />[[Education and Skills Act 2008]]<br />[[Coroners and Justice Act 2009]]<br />[[Policing and Crime Act 2009]]<br />[[Sexual Offences (Scotland) Act 2009]]<br />Justice Act (Northern Ireland) 2011<br />Crime and Courts Act 2013<br />Criminal Justice and Licensing (Scotland) Act 2010<br />[[Police Reform and Social Responsibility Act 2011]]<br />[[Health and Social Care Act 2012]]<br />[[Legal Aid, Sentencing and Punishment of Offenders Act 2012]]<br />[[Protection of Freedoms Act 2012]]<br />Criminal Justice Act (Northern Ireland) 2013<br />[[Anti-Social Behaviour, Crime and Policing Act 2014]]<br />[[Criminal Justice and Courts Act 2015]]<br />[[Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015]]<br />Justice Act (Northern Ireland) 2015<br />[[Modern Slavery Act 2015]]<br />[[Serious Crime Act 2015]]<br />Abusive Behaviour and Sexual Harm (Scotland) Act 2016<br />[[Policing and Crime Act 2017]]<br />[[Data Protection Act 2018]]<br />[[Space Industry Act 2018]]<br />[[Voyeurism (Offences) Act 2019]]<br />[[Sentencing Act 2020]]<br />[[Domestic Abuse Act 2021]]<br />Counter-Terrorism and Sentencing Act 2021<br />Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022<br />[[Police, Crime, Sentencing and Courts Act 2022]]<br />[[Online Safety Act 2023]]
| related_legislation = [[Sexual Offences (Scotland) Act 2009]]
| status = Amended
| original_text = http://www.legislation.gov.uk/ukpga/2003/42/contents/enacted
| revised_text = http://www.legislation.gov.uk/ukpga/2003/42/contents|
}}
The '''Sexual Offences Act 2003''' (c. 42) is an [[Acts of Parliament in the United Kingdom|Act]] of the [[Parliament of the United Kingdom|Parliament]] (for [[England and Wales]]).

It partly replaced the [[Sexual Offences Act 1956]] with more specific and explicit wording. It also created several new offences such as non-consensual [[voyeurism]], assault by penetration, causing a child to watch a sexual act, and penetration of any part of a corpse. It defines and sets legal guidelines for [[rape in English law]]. It is also the main legislation dealing with [[child sexual abuse]].

The corresponding legislation in [[Scotland]] is the [[Sexual Offences (Scotland) Act 2009]] and in [[Northern Ireland]] the [[Sexual Offences (Northern Ireland) Order 2008]].

==Major changes==
Part I of the act makes many changes to the sexual crimes laws in England and Wales (and to some extent Northern Ireland), almost completely replacing the [[Sexual Offences Act 1956]].

===Rape===
[[Rape]] has been redefined from the [[Sexual Offences Act 1956]] (amended in 1976 and 1994) to read:

{{quote|
A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.<ref name="legislation.gov.uk">{{cite legislation UK |type=act |year=2003 |chapter=42 |section=1 |act=Sexual Offences Act 2003 |access-date=17 April 2018 |mode=cs1}}</ref>}}

Rape previously did not include penetration of the mouth. The Act also changes the way in which lack of consent may be proved, and section 75 and 76 of the act list circumstances in which lack of consent may be presumed.

===Assault by penetration===
Section 2 creates the offence of ''Assault by penetration''.<ref>{{cite web |url=http://www.legislation.gov.uk/ukpga/2003/42/section/2 |title=Sexual Offences Act 2003 |website=legislation.gov.uk |access-date=17 April 2018}}</ref> This offence is set out separately because rape is defined as requiring penile penetration.<ref name="legislation.gov.uk"/> Therefore, non-consensual sexual penetration of the vagina or anus with either another part of the body (such as the fingers), or an object, must be prosecuted under this section. Section 2 closely mirrors section 1's definition of rape, including the same maximum sentence ([[life imprisonment]]), but does not include penetration of the mouth, and carries the additional requirement that "the penetration is sexual",<ref>Section 2 (1) (b)</ref> i.e. performed for the purpose of either the offender's sexual gratification or the victim's sexual humiliation.

===Consent===
The Act made significant changes to the legal definition of consent.

Sections 64 and 65 relate to sexual relationships within the family. Section 64 prohibits penetrating any other family member, and section 65 prohibits consenting to such sexual activities. Initially the legislation did not include uncles, aunts, nieces and nephews but after some debate these were written into the provision.<ref>{{Cite news |doi=10.1093/hrlr/ngu023 |title=Roffee, J. A. (2014). No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights}}</ref>

Section 74 states that: "For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."<ref>{{Cite web |url=http://www.legislation.gov.uk/ukpga/2003/42/section/74 |title=Sexual Offences Act 2003 |website=legislation.gov.uk}}</ref>

====Section 75====
Section 75<ref>{{Cite web |url=http://www.legislation.gov.uk/ukpga/2003/42/section/75 |title=Sexual Offences Act 2003 |website=legislation.gov.uk}}</ref> of the act introduced a number of evidential presumptions, which prove lack of consent unless the defence can provide sufficient, contrary evidence that the claimant did consent. These presumptions require the relevant act to have taken place at the same time as one of six circumstances existed, about which the defendant was aware.

The circumstances are (summarised):

{{ordered list|type=lower-alpha
| violence was used or threatened to be used against the complainant, during or immediately before the act
| violence was used or threatened to be used against another person, during or immediately before the act
| complainant was unlawfully detained
| complainant was asleep/unconscious
| complainant had a physical disability which prevented them from communicating consent
| complainant was able to be overpowered/ subdued by a substance administered to him against his will.}}

====Section 76====
Section 76<ref>{{Cite legislation UK |type=act|year=2003/l|chapter=42|section=76 |title=Sexual Offences Act 2003}}</ref> of the act introduces two conclusive presumptions. These are:

{{ordered list|type=lower-alpha
| where the defendant deceives the victim as to the nature or purpose of the relevant act (i.e. fraud)
| where the defendant induces the victim to consent by impersonating someone known to the complainant.}}

When either is proven, the law states that it is conclusively presumed that the complainant did not consent to the act, and the defendant was aware of the lack of consent. This cannot be rebutted by any contrary evidence, as is possible with section 75.

===Dual criminality===
Section 72 provides differing levels of dual criminality for specified offences according to the UK citizenship status of an offender. For UK nationals, acts outside the UK that would amount to an offence in England and Wales can be prosecuted as if they had been done in England and Wales, regardless of whether the acts are lawful where they were done. For UK residents, acts outside the United Kingdom have to constitute an offence in the country where they are committed, in order to be prosecuted in England and Wales.

===Other provisions===
The Act also now includes provisions against [[sex tourism]]. People who travel abroad with the intent to commit sexual offences can have their passports revoked or travel restricted.

Group homosexual sex has been decriminalised, in that Schedule 6 of the 2003 Act caused section 12 of the Sexual Offences Act 1956 to be omitted, removing the offence of homosexual sex "when more than two persons take part or are present".

Part II of the act also consolidated the provisions of the [[Sex Offenders Act 1997]] on registration of sex offenders and protective orders. These provisions generally apply throughout the United Kingdom.<ref>{{cite web |url=http://www.legislation.gov.uk/ukpga/2003/42/section/142 |title=Sexual Offences Act 2003 |website=legislation.gov.uk |access-date=17 April 2018}}</ref><ref>[http://www.legislation.gov.uk/ukpga/2003/42/part/2 Part 2] (Notification and orders) extends to Northern Ireland and with some exceptions to Scotland.</ref>

Section 45(2) changed the definition of "child" in the [[Protection of Children Act 1978]] (which applies to child pornography) from a person under 16 to a person under 18. Section 45 also inserted section 1A of the 1978 Act, and section 160A of the [[Criminal Justice Act 1988]], which create defences which apply where the photograph showed the child alone or with the defendant (but not if it showed any other person), the defendant proves that the photograph was of the child aged 16 or over and that he and the child were married or lived together as partners in an enduring family relationship, and certain other conditions are met.

The Sexual Offences Act 2003 creates further offences relating to prostitution.
*Sections 47 to 50 prohibit [[Prostitution of children|child prostitution]].
*Sections 52 and 53 prohibit [[pimping]] for financial gain.
*Sections 57 to 59 create offences relating to [[Human trafficking|sex trafficking]].
* Section 71 creates a specific gender-neutral offence of sexual activity in public toilets.  It repealed some of the predecessor offences, such as loitering or soliciting in public toiles, and gross indecency between men.
*The Act also inserted a new section 33A into the [[Sexual Offences Act 1956]], which relates to brothels.
A new section 51A was inserted by the [[Policing and Crime Act 2009]], which prohibits [[soliciting]].<ref>[http://www.legislation.gov.uk/ukpga/2009/26/section/19 Section 19], Policing and Crime Act 2009</ref> This came into effect on 1 April 2010.

==Criticisms==
The Act has faced criticism on several grounds.

===Consent===
The definition of [[consent (criminal law)|consent]] has caused some academics to raise concerns about the way consent is interpreted. Writing in ''[[The Journal of Criminal Law]]'', Bethany Simpson of [[Northumbria University]] has suggested that the terms "freedom"<ref name=autogenerated3>{{Cite web |url=https://www.legislation.gov.uk/ukpga/2003/42/section/74 |title=Sexual Offences Act 2003}}</ref> and "choice"<ref name=autogenerated3 /> used to define consent are too complex for the courts to apply.<ref>{{Cite journal |url=https://doi.org/10.1177/0022018316639104 |title=Why has the Concept of Consent Proven So Difficult to Clarify? |first=Bethany |last=Simpson |date=1 April 2016 |journal=[[The Journal of Criminal Law]] |volume=80 |issue=2 |pages=97–123 |via=[[Sage Publishing|SAGE Journals]] |doi=10.1177/0022018316639104 |s2cid=147168214|url-access=subscription }}</ref>

===Underage persons===
One of the more controversial parts of the act involves the criminalising of various common behaviours, such as laws which, on the face of it, outlaw consensual "sexual hugging" in [[public place]]s or by underage persons, even when both participants are under age, followed by the issue of guidance notes which countermand this, saying they should almost never be prosecuted.<ref name=autogenerated1>{{cite news |url=https://news.bbc.co.uk/1/hi/magazine/3672591.stm |title=Teenage kissing: The new sex crime? |first=Giles |last=Wilson |work=[[BBC News Online|BBC News]] |date=30 April 2004}}</ref><ref>{{cite web |url=http://www.cps.gov.uk/legal/s_to_u/sexual_offences_act/#Code_for_Crown_Child |url-status=dead |archive-url=https://web.archive.org/web/20120518053848/http://www.cps.gov.uk/legal/s_to_u/sexual_offences_act/#Code_for_Crown_Child |archive-date=18 May 2012 |work=Legal Guidance |title=Sexual Offences Act 2003: Code for Crown Prosecutors – Child defendant (under 18) |publisher=[[Crown Prosecution Service]] |access-date=7 June 2023 }}</ref>

The Home Office stated that legalising consensual sexual activity between children "would damage a fundamental plank in our raft of child protection measures".<ref name=autogenerated1/> A spokesman said, "We are not prepared to do this. We accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it. We are putting safeguards in place to ensure that these cases, which are not in the public interest, are not prosecuted – by amending guidance to the police and Crown Prosecution Service."<ref name=autogenerated1/>

Criticism came from Action on Rights for Children: "Laws should mean what they say. It's astonishing that the government could consider legislation with the prior intent of issuing guidance to countermand it. I worry about the message it sends to young people – it seems to say that sometimes the law means what it says and sometimes it doesn't."<ref name=autogenerated1/>

Professor [[Nicola Lacey]] of the [[London School of Economics]] commented: "What the Home Office would say was that they wanted to use the criminal law for symbolic impact, to say that it's not a good thing for kids to be having sex. My counter-argument is that the criminal law is too dangerous a tool to be used for symbolic purposes. With this on the statute book, it will give police and prosecutors a lot of discretion. It could be used as a way of controlling kids who perhaps the police want to control for other reasons. Kids who perhaps are a nuisance or who belong to a group who attract the attention of the police in some way."<ref name=autogenerated1/>

===Lack of transitional provisions===
{{unreferencedsection|date=August 2022}}
The 2003 Act repealed most sections of the [[Sexual Offences Act 1956]] and several other statutes dealing with sexual offences. Section 141 of the act gave the [[Powers of the home secretary|Home Secretary the power]] to make rules by [[statutory instrument]] to deal with the transition from the old to the new laws, to cover the situation where a defendant is charged with offences which overlap the commencement date of 1 May 2004. However no such "transitional provisions" were ever made.

This resulted in cases where a defendant was accused of committing a sexual offence but the prosecution could not prove the exact date of the offence, which could have been committed either before or after 1 May 2004. In these cases, the defendant had to be found not guilty, regardless of how strong the evidence against them was because a sexual offence committed before 1 May was an offence under the old law, but an offence committed on or after that date was a different offence under the new law. For example, an assault might either be indecent assault under the 1956 Act, or the new offence of sexual assault under the 2003 Act, depending on when it happened, but it could not be both. If the prosecution could not prove beyond reasonable doubt which offence had been committed, then the defendant could not be convicted of either.

The Court of Appeal first dealt with this problem in December 2005, when the prosecution appealed against the decision of a judge to order a jury to acquit a defendant for precisely that reason. Dismissing the appeal, [[Christopher Rose (judge)|Lord Justice Rose]] said: "If a history of criminal legislation ever comes to be written it is unlikely that 2003 will be identified as a year of exemplary skill in the annals of Parliamentary drafting."<ref>''R v A'' <nowiki>[2005] EWCA Crim 3533</nowiki>, [2006] 1 Cr App R 28; ''The Times'', 5 January 2006</ref>

This situation was not resolved until Parliament passed Section 55<ref name="s55">{{Cite legislation UK
  | type = act
  | act = Violent Crime Reduction Act 2006
  | chapter = 38
  | section = 55
  | year = 2006
  | access-date = 2023-08-28
  | date = 2007-02-12
}}</ref> of the [[Violent Crime Reduction Act 2006]], which came into force in February 2007.

===Gendered definition of rape===
Under the act's definition of rape (penetration of the "mouth, anus or vagina with [the defendant's] penis"), only a man can be charged with rape. A woman who forces a man or woman to have sexual intercourse with her against their will could only be charged, under Section 4 of the act, with sexual assault or "causing a person to engage in sexual activity without consent". Rape is an [[indictable offence]] while Section 4 offences are [[Triable either way|either way offences]].<ref name="Wear"/>

There have been calls for the act to be amended to include female-perpetrated rape within the definition of rape.<ref name="BBC"/><ref name="Wear">{{cite journal|last=Wear|first=Siobhan|date=2018|title='Oh you're a guy, how could you be raped by a woman, that makes no sense': towards a case for legally recognising and labelling 'forced-to-penetrate' cases as rape|url=https://www.cambridge.org/core/services/aop-cambridge-core/content/view/8166CABA33BBE64EBBAD384E1FE13551/S1744552317000179a.pdf/oh-youre-a-guy-how-could-you-be-raped-by-a-woman-that-makes-no-sense-towards-a-case-for-legally-recognising-and-labelling-forced-to-penetrate-cases-as-rape.pdf|journal=International Journal of Law in Context|volume=14 |pages=110–131 |doi=10.1017/S1744552317000179 }}</ref><ref>{{cite journal|last=McKeever|first=Natasha|date=2018|title=Can a Woman Rape a Man and Why Does It Matter?|url=https://link.springer.com/content/pdf/10.1007/s11572-018-9485-6.pdf|journal=Criminal Law and Philosophy|volume=13 |issue=4 |pages=599–619 |doi=10.1007/s11572-018-9485-6 }}</ref> In September 2016, the Government responded to a petition requesting that the legal definition of rape be changed to include female-on-male assaults: "There was a considerable amount of agreement that rape should remain an offence of penile penetration. We therefore have no plans to amend the legal definition of rape."<ref name="BBC">{{cite news|url=https://www.bbc.co.uk/bbcthree/article/95769958-f129-416c-9610-c8f96504ce77|work=BBC Three|date=18 November 2016|accessdate=30 March 2024|title=I'm a woman. I was raped by a woman. And I know what you're thinking.|first=Rebecca |last=Twinley}}</ref>

==Extent and repeals==
The Act applies to England and Wales only, except for the provisions listed in s.142(2) of the act which also apply to Northern Ireland and the provisions listed in s.142(3) of the act which also apply to Scotland. The Act repealed the [[Sex Offenders Act 1997]] in its entirety, and almost all of the [[Sexual Offences Act 1956]], which until then had been the main legislation for sexual offences. It also repealed much of the [[Sexual Offences Act 1967]] which had discriminated heavily against homosexual and bisexual men, leaving it largely gutted of statutory effect.

==Amendments==
The [[Voyeurism (Offences) Act 2019]] amended the Sexual Offences Act 2003 to make [[upskirting]] a specific offence in England and Wales.<ref>{{cite press release |url=https://www.gov.uk/government/news/upskirting-now-a-specific-crime-after-bill-receives-royal-assent |title='Upskirting' now a specific crime as bill receives Royal Assent |author1=Ministry of Justice |first2=Lucy |last2=Frazer |author2-link=Lucy Frazer |website=gov.uk |publisher=Government Digital Service |date=12 February 2019 |access-date=12 February 2019}}</ref>

The [[Online Safety Act 2023]] added two new offences to the Sexual Offences Act: sending images of a person's genitals ([[cyberflashing]]),<ref>{{Cite legislation UK|type=act|year=2023|chapter=50|act=Online Safety Act 2023|section=187}}</ref> or sharing or threatening to share intimate images.<ref>{{Cite legislation UK|type=act|year=2023|chapter=50|act=Online Safety Act 2023|section=188}}</ref>

==See also==
*[[Sexual Offences Act]]
*[[Sexual offences in the United Kingdom]]
*[[Violent and Sex Offender Register]]
*[[Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography]]
*[[Operation Cathedral]]
*[[Bolton 7]]

==Notes==
{{reflist}}

==References==
*Kim Stevenson, Anne Davies, and Michael Gunn, ''Blackstone's Guide to the Sexual Offences Act 2003'' (OUP 2003)
*[https://web.archive.org/web/20101207114922/http://www.homeoffice.gov.uk/publications/police/operational-policing/guidance-part-2-sexual-offences Guidance on part 2 of the Sexual Offences Act 2003]

==External links==
*{{wikisource-inline|single=true}}
*[https://www.legislation.gov.uk/ukpga/2003/42/contents Sexual Offences Act 2003 at legislation.gov.uk]
*[https://news.bbc.co.uk/1/hi/magazine/3672591.stm "Teenage kissing: The new sex crime?"] by Giles Wilson, BBC, 30 April 2004

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[[Category:United Kingdom Acts of Parliament 2003]]
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