Abuse of Position of Trust & Sexual Offences
Teachers, foster carers, healthcare professionals and other individuals in a position of trust are increasingly being prosecuted for sexual offences. Between 2013-2014, the NSPCC reported that over 180 children in England and Wales claimed 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.
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:
Specific settings include:
- educational institutions
- hospitals
- 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.
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.
Contact Our Specialist Sexual Offences Lawyers
If you have been accused of an offence of this nature, contact our specialist casework team. We can handle every aspect of your defence. Our offices are open 24 hours a day, seven days a week. For more information, please contact our leading criminal defence team head Richard Egan by emailing eganr@tuckerssolicitors.com or calling 0771 112 9918.