Abuse and Positions of Trust: Closing the Loophole

The long-awaited Police, Crime, Sentencing and Courts Act 2022 came into force on 28 April 2022 and widened the definition of persons being in a “position of trust” to include sports coaches and faith leaders, who would now commit a criminal offence for engaging in any sexual relationship with a person who was 16 or 17 years old.

Under the Sexual Offences Act 2003 it had always been an offence for someone over the age of 18 who is in a “position of trust” to engage in any sexual relationship with a person who is 16 to 17 years old. However, the categories of those defined as being in positions of trust were always refined to those operating in statutory settings or services, such as people who are employed to look after children under the age of 18, e.g. care workers, teachers and police officers. In this respect, the law was designed to protect people who were above the age of consent but still potentially vulnerable to sexual exploitation from an adult in a position of trust.

In more recent years with the examples of abuse in sports and churches, concerns were voiced that these original positions of trust were too narrow and that an extension was required to protect a wider range of relationships where adults hold a position of influence or power over 16 and 17 year olds. Indeed, it was argued that those who carry out certain roles in sport or religion are particularly influential over a child’s development. Sports coaches 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. Both situations have high levels of trust, influence, power and authority and these figures are generally well established, trusted and respected in the community.

The new Act

Under section 22 of the Sexual Offences Act 2003, a person is in a position of trust if they are “regularly involved in caring for, training, supervising or being in sole charge” of a child. The new Act has now created section 22A of the Sexual Offences Act 2003. It was debated in Parliament whether or not it would be easier to simply add to the existing positions of trust contained in section 21. However, because this covered statutory settings in respect of the relationship between the adult and the child, it was felt that it would be clearer to define the additional positions under a new section of the Act.

In simpler terms, the new legislation defines these further positions of trust by reference to the activity which the adult is carrying out in relation to the child, as opposed to the role they hold. This covers things such as coaching, teaching, training, supervising or instructing in a sport or a religion. Both elements would need to be met.

Sport is defined as using games in which physical skill for the purpose of competition or display is the predominant factor. 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 does not hold a belief in a god.

It is also a requirement that the adult carries out the activity “on a regular basis”, to avoid an approach that is too broad and includes someone who only occasionally helps with a coaching session. A knowledge requirement must also be met: the adult must be made aware that they carry out a certain activity on a regular basis in relation to the child. This is to prevent the positions of trust being drawn too broadly and strengthens the requirement for a prior connection between the adult and child.

Comment

The new Act brings to an end the campaign to ‘Close the Loophole’ and helps to provide additional safeguards for young people. However, it may take time to fully interpret the meaning of the provisions around the issue of knowledge and as to what is considered to be “on a regular basis”. It is important to remember that the law remains clear that 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.

For more information, please contact Lauranne Nolan.