Sexual communication with a child is committed when a person aged 18 or over intentionally communicates with someone under 16 for the purpose of obtaining sexual gratification. The communication must be sexual or intended to encourage the child to make a sexual communication. Allegations often arise from messages exchanged through social media, dating platforms, chatrooms or apps such as WhatsApp, Snapchat and Kik. Undercover police profiles or so-called “paedophile hunter” groups may also pose as children, leading to allegations of attempting to commit the offence even though no child was involved.
The sentencing guideline provides a custodial starting point for every category of this offence, although the sentence may be suspended depending on the wider circumstances and the available mitigation. Where sexual images or videos were requested, sent or received, the guideline provides a starting point of 18 months’ custody, underlining the importance of obtaining specialist advice at an early stage.
Reeds Solicitors specialises in defending sexual offence allegations and represents clients accused of sexual communication with a child throughout the investigation and any subsequent court proceedings. A defence may be available where the person accused reasonably believed that the other person was aged 16 or over, where the communication was not for the purpose of sexual gratification, or where there is a dispute about who was responsible for operating the account.
Reeds Solicitors is recognised as a leading criminal defence firm, with Tier 1 status in The Legal 500 and a Band 1 ranking in Chambers and Partners.
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What must the prosecution prove?
The offence of sexual communication with a child is set out in section 15A of the Sexual Offences Act 2003. To secure a conviction, the prosecution must prove that:
- the person accused was aged 18 or over;
- they intentionally communicated with another person;
- the other person was under 16;
- the communication was sexual or intended to encourage the child to make a sexual communication;
- the communication was made for the purpose of obtaining sexual gratification; and
- the person accused did not reasonably believe that the other person was aged 16 or over.
A communication may be sexual because of its content or because it is intended to encourage a sexual response. The court will consider the words, images or videos exchanged together with the wider context of the conversation.
Defences
Potential defences include:
- Reasonable belief about age: A defence may be available where the person accused reasonably believed that the other person was aged 16 or over. This issue can arise where contact began through an adults-only dating platform and the profile gave an age of 18 or over, but the person operating the account later claimed during the conversation to be under 16. The court must consider whether that later claim was believed and whether the continuing belief that the person was aged 16 or over was reasonable in all the circumstances.
- Disputed attribution: The person accused did not send the messages or operate the account. This may require examination of the relevant devices, account records, login information and other digital evidence.
- No sexual communication: The messages were not sexual and were not intended to encourage the other person to make a sexual communication.
- No purpose of sexual gratification: Even if aspects of the conversation were sexual, the communication was not sent for the purpose of obtaining sexual gratification.
Meet the Sexual Offence Team
Stuart Matthews
Founding Partner, Solicitor-Advocate & Head of Private Crime
Scott Primmer
Partner & Solicitor
Tom Brymer
Partner and Solicitor
Nicola Hutchinson
Partner & Solicitor-Advocate
Damian Wall
Senior Associate Solicitor
Beth Mantel
Partner, Team Leader (North-West) Complex Crime & Solicitor
Kate Macnab
Senior Associate & Solicitor
Nathan Seymour-Hyde
Partner & Solicitor
Ayelen White
Associate Barrister
Lucy Tapper
Partner, Barrister and Complex Crime Litigator
Maria-Elena Cheshire
Associate Solicitor
Frequently Asked Questions
The legislation defines sexual communication as follows:
- (2) For the purposes of this section, a communication is sexual if—
- (a) any part of it relates to sexual activity, or
- (b) a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual.
Careful consideration must be given whether the communication has surpassed mere “sexual communication” and has incited a child to engage in sexual activity. Inciting a child to engage in sexual activity is a more serious offence and charged under S.10 of the Sexual Offences Act 2003. Where possible it is necessary to avoid such a prosecution due to the potential for more onerous sentences. If you are being investigated for such an offence you should seek advice on this issue at the earliest opportunity.
The definition of ‘child’ varies between offences in the Sexual Offences Act 2003. Generally, a child is defined as anyone under the age of 16 but there are some offences designed to give greater protection to those under the age of 13 and others where the definition of ‘child’ extends to anyone under the age of 18.
For the purposes of S.15a Sexual Communication with a Child, a child is defined as someone under the age of 16.
The offence requires that the child be under 16 and the person communicating does not reasonably believe that B is 16 or over. This means if you reasonably believed the person to be over 16 you are not guilty of the offence.
Careful consideration would need to be given in relation to the nature and context of the communication before this is asserted as a defence. If you are being investigated for such an offence you should seek advice on this issue.
This is a complicated question. The maximum sentence for this offence is 2 years custody.
The Sentencing Council’s guidance note is found at this link.
It is important to note this is consultation only at present. However, it is a useful guide to understanding how the Court will approach a sentencing hearing. You will see that all starting points for each category are custody. This indicative that the court treat these cases extremely seriously. It can therefore be said that convictions for indecent images offence often result in custodial sentences.
It is also worth noting that any sentence under two years custody can be suspended. This means the defendant does not go to prison and will likely be ordered to serve his sentence in the community with the Probation Service. The Court also has the opportunity to consider a community order with the probation service.
Yes, a person convicted of this offence is subject to the notification requirements of the Sexual Offender’s Register.
The Court may also consider imposing a Sexual Harm Prevention Order (SHPO), or a Sexual Offences Prevention Order (SOPO). If you wish to read further information on these issues please follow the links provided.
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