Teachers, foster carers, healthcare professionals and other individuals in a position of trust are increasingly being prosecuted for sexual offences. In 2011/2012 1290 offences were recorded where a child complained that someone in a position of trust sexually abused them. In recent years, the media have also provided increasing coverage of such cases, for example:
- In 2012, the historical sexual offences of Jimmy Savile included claims he had used his status as a celebrity and charity fundraiser to sexually abuse up to 60 seriously ill patients, some only eight years old, at Stoke Mandeville Hospital. There is evidence that some of the hospital staff knew about his conduct but failed to take any action.
- In 2014, Dr Myles Bradbury was sentenced to 22 years in jail for committing 25 sexual offences. These included 6 counts of sexual assault against patients with serious diseases such as leukaemia and 13 counts of engaging in sexual activity with a child. Bradbury also admitted three counts of causing or inciting a child to engage in sexual activity, one count of voyeurism and two counts of making indecent images of a child. He possessed more than 16,000 indecent images of children and had accessed indecent images of children online.
- In 2015, there was the case of Bill Rathbone, a father who was an award-winning foster carer. He had been honoured on the talk show Trisha for fostering over 70 children. He was convicted of a string of sex offences against young girls in his care while his wife turned a blind eye. In May 2015, he was convicted of 14 child sex abuse charges and sentenced to 13 years and six months in prison.
Abuse of Position of Trust Sexual Offences
The Sexual Offences Act 2003 sets out the law on sexual offences committed by those in positions of trust. Although the offences cover all children under 18, they are principally designed to protect young people aged 16 and 17 who, even though they are over the age of consent for sexual activity, are considered vulnerable to sexual abuse and exploitation.
The age of consent for sexual activity in the UK is 16. However, that rises to 18 where the consensual sexual activity involves one person in a positon of trust.
The offences were designed to protect 16 and 17 year olds from being persuaded to engage in sexual activity which would not be criminal except for the offender’s position of trust.
Where a child is under 16 and cannot give reasonable consent to sexual activity, the expectation is that any offences committed would be caught by ss. 9-13 of the Sexual Offences Act 2003. Once a person is 18, they cannot only consent but are considered adult – therefore, unless a sexual act has been committed without consent (such as rape or non-consensual sexual touching), then no offence occurs.
The 2003 Act’s provisions on ‘abuse of position of trust’ provide specific roles and settings where sexual activity between a child and a person in a position of trust, responsibility or authority constitutes a criminal offence.
Specific roles include:
- social workers
- foster carers
- police officers
Specific settings include:
- educational institutions
- foster homes
- residential care homes
- young offenders institutions
- independent clinics
Under the 2003 Act, at the time of the alleged incident the complainant must have been under 18 years old or under 13 years old. If the child is proved to be under 18, there is a presumption that the accused did not reasonably believe that the child was 18 or over. This means that it is up to the accused to provide sufficient evidence to raise an issue as to whether they reasonably believed the child was 18 at the time of the alleged incident.
There is also a presumption that the accused knew or could reasonably have been expected to know that they were in a position of trust when the alleged incident took place. This means, that again, it is up to the accused to provide sufficient evidence to raise an issue as to whether they reasonably believed that they were in such a position.
Specific Abuse of Position of Trust Sexual Offences
Sexual Activity with a Child (s. 16): This occurs where a person over 18 years old who is in a position of trust in relation to a child intentionally touches that child in a sexual manner.
Causing or Inciting a Child to Engage in Sexual Activity (s. 17): This occurs where a person aged over 18 who is in a position of trust in relation to a child intentionally causes that child to engage in an activity of a sexual nature.
Sexual Activity in the Presence of a Child (s. 18): This occurs where a person aged 18 or over intentionally engages in a sexual activity when a child under 18 is present or in a place from which they can be observed for the purposes of obtaining sexual gratification. The accused must be in a position of trust in relation to the child and must also know or intend that the child is aware that they are engaging in sexual activity.
Causing a Child to Watch a Sexual Act (s. 19): This occurs when a person aged 18 or over intentionally causes a child under 18 to watch a third party engaging in sexual activity or to look at an image of any person engaging in an activity of a sexual nature.
Sections 21 and 22 provide definition and interpretation in relation to what is a position of trust in these circumstances.
Exceptions to the Rules
s.23 states that behaviour, which would otherwise be an offence under ss. 16-19, are not considered offences if the parties are over 16 and they are lawfully married or in a civil partnership. In proceedings for abuse of trust offences, it is for the accused to prove that the parties were lawfully married or civil partners at the time the activity took place.
s.24 states that any behaviour, which would otherwise be an offence under ss. 16-19, is not an offence if they take place in the context of a sexual relationship that existed before the position of trust was established between the parties. For example, a person would not commit an offence by continuing a sexual relationship with a student if the person could prove that the relationship began before they went to work for the school.
In proceedings for an offence under ss. 16-19, it is for the accused to prove that such a relationship existed at the time. However, this exception does not apply if, at that time, sexual intercourse between the parties would have been unlawful; in other words, one party was under 16 years old.
Further Implications of an Abuse of Trust
- Such breaches of an organisation’s code of conduct could result in disciplinary action and possibly dismissal. Findings of sexual misconduct damage the public’s trust and confidence in the profession. It also breaches several ethical principles. For example, where clinicians are concerned, it breaches; honesty, integrity, establishing and maintaining partnerships with patients, respecting patients’ dignity and provisions regarding children and young people. Any finding of sexual misconduct can justify summary dismissal and, e.g. with certain professions having one’s named erased from their Regulator’s register leaving them unable to practice in the UK.
- It can raise questions over fitness to practice and may be the cause of a referral to what is now the Disclosure and Barring Service (DBS), an amalgamation of the ISA and CRB. The DBS prevents unsuitable people from working with children through its vetting and barring scheme. Individuals applying for employment where they will be in a position of trust will have a background check carried out on them as a matter of course before they are offered the position. If this uncovers that a person has been convicted of an offence involving an abuse of their position of trust, they may be barred from taking up the position.
Therefore, if you have been accused of abusing your position of trust, you must obtain specialist legal advice and have a robust defence.
What about sexual relationships between people in a “position of trust”?
This is where the person that they have a position of trust over is not a child.
Some of the best examples of where clear sexual boundaries between people lie are those for Health Care Professionals and patients as set out by the Council for the Health Care Regulatory Excellence (HCRE)”.
A breach of the boundaries occurs when a Health Care Professional (HCP) displays sexualised behaviour towards a patient. This is defined as, acts, words or behaviour designed or intended to arouse or gratify sexual impulses or desires. This could include things such as sexual humour or innuendo and making inappropriate comments about a patient’s body. Here, any “breach of trust” can be seen as an aggravating factor if someone is found or pleads guilty.
This is because there is an in-balance of power in the HCP/patient relationship. The patient is at one of their most vulnerable points when they require health care and the HCP is in a position of power because they have access to resources and knowledge that the patient needs.
A power in-balance may also arise because a HCP usually decides a level of intimacy and/or physical contact during diagnosis or treatment.
It is the responsibility of the HCP to establish and maintain clear sexual boundaries. This will include seeking consent/permission before touching a patient or asking them to undress.
In most circumstances were a sexual relationship between a HCP and a patient takes place, it will not be appropriate.
This would be especially so if:-
- The HCP used a power in-balance or information about the patient which he or she gained whilst treating the patient.
- If the HCP/patient relationship involved long term emotional or psychological support.
- If the patient was suffering from mental health problems or a condition that effected their judgment at the time the HCP was treating them.
This type of relationship also is relevant to school teachers (where the pupil has recently left their educational establishment), solicitors (perhaps most generally in family law cases), police officers where they are in a position of power over someone they have arrested or perhaps a vulnerable person who has made a complaint and social workers who have both adults and children in their supervision.
Contact Our Sexual Offences Defence Lawyers (Yorkshire, London, Birmingham, Manchester)
Our robust defence preparation, attention to detail and professional representation makes us the first choice for criminal defence. These key traits are essential to safeguarding the rights of our clients from allegations of criminal activity. We discuss all the available options in order to find and implement the best course of action.
Our expert sexual offence solicitors are available 24 hours a day, 7 days a week, ready to advise and assist. For more information, please contact Stuart Sutton on 07798 753 720 or get in touch via our online contact form.