Historic Sex Offences Frequently Asked Questions
Allegations of historic sexual offences can be deeply distressing and life-altering, even if the events in question date back decades. These cases typically involve accusations of sexual misconduct said to have occurred many years ago—sometimes as far back as childhood or early adulthood—and are often based on a complainant’s recollection of past events.
If you’ve been accused or are under investigation, it’s natural to have questions about the legal process, possible outcomes, and what steps to take next. Below, we’ve answered some of the most frequently asked questions to help you understand your rights and the legal support available.
Q. I am charged with offences from when I was under the age of 14, what can I do?
Depending on when the allegations arise from for example if they are before September 1998, then the legal doctrine of doli incapax may be relevant.
Translated, doli incapax means “incapable of evil” and it was presumed at the time that children between the ages of 10 and 13 (under 14) were incapable of committing a criminal offence.
It meant that they were assumed to lack criminal intent, known as “mens rea”.
However, this doctrine was capable of rebuttal by the prosecution if they could prove that the child did not only commit the act but could also demonstrate that the child knew it was “seriously wrong” and not just a prank.
Doli incapax was abolished by the Crime & Disorder Act 1998.
The doctrine of doli incapax remains relevant in cases of alleged crimes committed before the act of Parliament was implemented. It may be possible to argue doli incapax in relation to any offences that you face if you were under 14 as at September 1998.
Q. Is there a statute of limitations on sexual offending?
Essentially the answer, “no”.
There is one exception namely something what was called unlawful sexual intercourse. Where someone had sexual intercourse with a person when the perpetrator was 16 or older and the person with whom they were having sexual course was aged 13, 14 and 15.
Although consent is not capable of being given before one reaches the age of 16, the law recognised then (and still does) that people aged 13, 14 and 15 can still consent to a sexual act.
Therefore, if the 13, 14 or 15 year old consented to sexual intercourse with the person who is aged 16 or over and did not make a complaint about this within 12 months of the last time that there was intercourse then any allegations in that respect are time barred.
Other than that, all alleged sexual offending is capable of prosecution, no matter when the offence allegedly took place.
Q. Am I not prejudiced by the passage of time?
The answer to this is more than likely, “yes”.
However what can you do about it?
The answer is that prejudice for the passage of time, the loss of memory for witnesses, witnesses having died, emigrated, not being capable of being found, papers have been destroyed, buildings having been knocked down and so on is something that we can incorporate both in a defence statement and before your jury.
Most reasonable people will recognise that were it them, who were facing the allegations that you are facing, they would want prejudice to be argued.
Therefore, we can advance the issue of prejudice and set out how you are prejudiced by the passage of time and the happening of the events such as those we have set out, above.
Occasionally, we can advance an argument known as an “Abuse of Process Argument”.
This is not often successful but highlights the issues to the court, that one faces in certain historical cases.
Q. I was questioned about this back in the day, why is this matter being resurrected?
Because there is no time limit/statute of limitations in relation to alleged sexual offending, an offence can be investigated by the police and/or considered by the Crown Prosecution Service, that occurred many years ago and was made the subject of no further action (NFA). Yet, the complaint can be resurrected at a later time, if there is any “new evidence”, a new complaint by the same complainant, a wish for the complainant to have the matter reconsidered and so on.
Sometimes an accused person in the present time is fortunate enough to have the information in relation to the previous enquiries still available to them for example the recordings of the interviews with the police, documents made by Social Services and so on are still to hand.
However, often, such records are long since destroyed which causes a prejudice to the accused/defendant.
These are things that we can argue either in an Abuse of Process Argument or by advancing the prejudice arguments in front of a jury
Q. What laws/legislation apply?
Before the 1st May 2004 when the Sexual Offences Act 2003 became law, the main legislation was the Sexual Offences Act 1956 although there was also the Indecency with Children Act 1960.
From the 1st May 2004 any offences are or likely to be within the Sexual Offences Act 2003.
Q. What is the sentencing regime for historic offences?
Sentencing in historic offences is typically based on the law and sentencing guidelines in effect at the time of the offence.
The anomaly arises where someone is now almost certainly an adult and was a child at the time of the offending.
Here, the court has to sentence pursuant to the present regime but cannot give a sentence that is greater than the maximum available at the time of the offence.
Offenders will also be made the subject of what are called Ancillary Orders such as signing on the “Sex Offenders Register” and potentially a Sexual Harm Prevention Order.
Q. Is there not a greater potential for a miscarriage of justice in such cases?
Yes, the potential for a miscarriage of justice in such cases is high. The right to a fair trial is of particular significance. Unfounded sexual allegations must be robust when defended with considerable attention given to the accuracy and voracity of the evidence and how a case is presented.
Alleged historic sexual abuse is an unsettled and complicated area of law, raising many questions for the accused and complainer alike. A particular difficultly is the passage of time, which can create hurdles when seeking to establish the truth and ensure a fair trial.
Q. Can I take action against the complainant when no further action has been taken against me?
It is highly unlikely. We are not the firm to ask this question to as we do not deal with “civil” legal work however it can be a matter for the police and CPS as to whether anybody who has made a seemingly false complaint is questioned and/or prosecuted. Most complainants will maintain that their allegation is true, whether the matter is proceeded with by the police and/or the CPS.
It seems to us that the vast majority of complainants can make their complaint with impunity.
Q. Why are Social Services involved in my case?
If you have relevant children ie children under the age of 16 or there are children who are dependent upon you for some reason for example they have some kind of disability or for example you may care for your grandchildren whilst their parents are at work, Social Services may want to be involved with you to do a “safeguarding” assessment of you and/or your family unit, pursuant to Section 47 of the Children Act 1990.
This may mean that if you are on bail one of your conditions is to have no unsupervised contact with a person under the age of 16 (and sometimes under 18) or in the alternative you may be asked to live somewhere other than your normal family address (where the children reside or attend).
Often, once a Section 47 investigation is complete and you have been assessed as being no risk to the young people in your family, you will be allowed to return to your address or allowed to have unsupervised contact with certain, named individuals.
Contact our Expert Historic Sexual Offence Solicitors
Our experienced historic sexual offence solicitors are available 24/7 to provide confidential advice and support. To speak with us, please contact Stuart Sutton directly on 07798 753 720, email him at stuart@ssdll.co.uk, or complete our secure online contact form.
Please note we do not provide legal aid case representation
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Please note we do not provide legal aid case representation
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