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Extending position of trust provisions to capture those that lead activities in sporting and religious settings.
1. What are we going to do?
We are extending the “position of trust” offences within ss 16 – 19 of the Sexual Offences Act 2003 to include situations where certain activities take place in a sport or religion.
The “position of trust” offences are intended to target situations where the child has some dependency on the adult involved, often combined with an element of vulnerability of the child. Existing positions of trust are directed at those who are employed to look after children under the age of 18, for example those providing care for a child in a residential care home, hospital or educational institution.
Concerns had been voiced in Parliament and society more widely that the current positions of trust were too narrow, and that an extension to them was required to protect a wider range of relationships where adults held a position of influence or power over 16 and 17 year olds.
The further positions of trust were drafted following a Ministry of Justice (MoJ) review which engaged with stakeholders across the youth and criminal justice sectors, including the police, the Crown Prosecution Service (CPS), sports bodies, victims’ groups, and religious organisations.
Together with the further positions of trust that have been drafted we are intending to include provisions in the Act to allow additional positions of trust to be added via secondary legislation should that prove necessary.
2. How are we going to do it?
We are creating a new s22A of the Sexual Offences Act 2003, rather than simply adding roles to the existing positions of trust contained in s21. This is because the current positions are defined either by reference to statutory settings or services so far as the adult’s (A’s) relationship to the young person (B) is concerned. Non-statutory settings represent a departure from the current legislation and require a different approach.
The new further positions of trust are defined by reference to the activity which A is carrying out in relation to B, namely, coaching, teaching, training, supervising or instructing in a sport or a religion, as defined. Both elements would need to be met.
Furthermore, it is a requirement that A carries out the activity “on a regular basis”, to avoid an approach that is too broad and capture someone who only helps with a coaching session, say, on one occasion or infrequently.
Also, a knowledge requirement must also be met, so that A is aware that they carry out a certain activity on a regular basis in relation to B. This is to prevent the positions of trust being drawn too broadly and strengthen the requirement for a prior connection/contact between A and B. This is intended to ensure that if, for example, A preaches regularly to a congregation of 2000 people and has had never met B, so does not even know that B is a member of that congregation, A will not be considered to be in a position of trust over B.
Sport is defined using games in which physical skill is the predominant factor and those which are engaged in for the purpose of competition or display.
Religion is defined to capture those involved in a religion that holds a belief in one or more gods, and those involved in a religion that do not hold a belief in a god.
Several examples of abuse in a sport and a religion have come to light in recent times, most prominently the widespread child sexual abuse in football that was revealed in 2016, including by former coach Barry Bennell.
Allegations of sexual abuse across a variety of religious and faith settings prompted an investigation by the Independent Inquiry into Child Sexual Abuse (IICSA).
There has been a call for change across Parliament and wider society, including the ‘Close the Loophole campaign’ run by the National Society for the Prevention of Cruelty to Children (NSPCC), and the All-Party Parliamentary Group on Safeguarding in Faith Settings report published in 2020, which called for a change in the existing legislation to protect young people.
In Spring 2019 the MoJ conducted a review of the law in this area, speaking to 45 stakeholders, including charities, sports bodies, religious organisations, victims’ groups, the police, and the CPS. This review found strong evidence for extending the law to cover situations involving activities taking place in a sport or in a religion.
4. Frequently asked/useful questions
4.1 Q: Why were the existing positions of trust offences created?
The existing positions of trust offences were not intended to cover all scenarios or situations in which a person might have contact with, or a supervisory role over, those aged under 18. They were intended to target those where the young person has some element of dependency on the adult involved, often combined with an element of vulnerability of the young person: for example, those caring for a young person in a residential care home, hospital or educational institution.
4.2 Q: Did you consider simply expanding the “positions of trust” offences to cover any adult involved in caring for, training, supervising or being in sole charge of a child?
We looked at a range of options including such a broad reform. This is an incredibly complex area. Whilst tempting to expand the definitions in such a broad manner, it was important to note that as the definition widens so does the erosion of the legal right of those over the age of 16 to consent to sexual activity.
4.3 Q: Why only those individuals who coach, teach, train, supervise or instruct in a sport or a religion? Did you consider expanding the further “positions of trust” to cover other specific situations?
Those who carry out certain activities in a sport or religion are particularly influential over a child’s development. For example, sports coaches have unique opportunities for physical contact, and can hold major influence over a young person’s career and future development. Similarly, those who carry out certain activities in a religion often have significant influence over a young person’s spiritual and religious development, often against a background of emotional vulnerability or immaturity. Both situations also have very high levels of trust, influence, power and authority and (particularly in the case of those involved in a religion) these figures are well established, trusted and respected in the community.
4.4 Q. In moving away from existing defined statutory positions does it mean that the age of consent is effectively increased, thereby leading to the potential criminalisation of innocent relationships?
These further positions of trust have been drafted to strike the sensitive balance between the protection of young people and the need to ensure that we do not infringe upon the sexual rights and freedoms of those over the age of 16 granted to them by Parliament. We are very aware of the risk of inadvertently criminalising ordinary relationships. Achieving the right balance is therefore the key challenge in developing these additional measures.
4.5 Q: What are you doing to address wider concerns expressed during the review of the law?
Whilst we did not feel it was appropriate to extend positions of trust to capture all of those who come into contact with 16/17 years olds in every role, the provision will allow additional positions of trust to be added via secondary legislation should it prove necessary to do so. Some concerns expressed during our review, and in correspondence, relate to young people aged under 16.
It is important to remember that our laws on sexual activity with under-16s are robust and clear. It is a crime for anyone to engage in sexual activity with someone under the age of 16, whether or not they consent to that activity. Non-consensual sexual activity, whatever the age of the victim, is also illegal.