Child sexual exploitation: definition and practitioner briefing paper

Appendix 1: The Legal Framework

Criminal Offences

The Sexual Offences (Scotland) Act 2009, the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 and the Human Trafficking and Exploitation (Scotland) Act 2015 together provide for a number of sexual and other offences that can be used to prosecute cases of CSE. These are categorised by the age of the victim and include:

Under 13

Offences against younger children: Including the commission of a rape or other sexual assault; causing a child to be present or participate in a sexual activity; indecent communication; sexual exposure and voyeurism. Belief that the child was of an older age is irrelevant and cannot be used as a defence. ^[21]

Under 16

Offences against older children (13 to 15 years of age): ^[22] Largely mirrors the content of offences against younger children (including penetration of vagina, anus or mouth by penis or other object; causing a child to be present or participate in a sexual activity; indecent communication, sexual exposure and voyeurism) but age defence is justifiable in certain circumstances. ^[23]

Offence of older children (13 to 15 years) engaging in sexual conduct with each other: Includes sexual penetration of vagina, anus or mouth by penis and touching of vagina, anus or penis by mouth. ^[24]

Offence of meeting a child following certain preliminary contact (any child under 16): Essentially an offence of "grooming". Covers an individual travelling (in UK or abroad) to engage in unlawful sexual activity with, or in the presence, of a child; following prior contact or communication. ^[25]

Under 18

Offence of sexual abuse of trust: covers situations of sexual activity by an individual in a position of trust such as a teacher or care home worker. ^[26]

Offences related to indecent photographs (including films) of children: offences cover the taking, distribution, publication and possession of indecent images of children under the age of 18 in certain circumstances. ^[27]

Offences relating to the sexual services of children and child pornography: Includes the offences of paying for the sexual services of a child (paying or promising payment; defined as any financial advantage); causing, inciting, arranging or facilitating the provision by a child of sexual services or controlling a child providing sexual services or involved in pornography anywhere in the world. ^[28]

Not age specific

Offence of human trafficking: This offence is committed if a person arranges or facilitates the recruitment, transportation, harbouring or transfer of control of a person for the purposes of exploitation by themselves or others during or after this. ^[1] This includes movement within Scotland as well as outside of Scotland. The offence covers both adults and children, with perpetration against a child noted to be an aggravating factor that, if proven, could result in a more serious conviction and potentially a lengthier sentence.

Civil Orders

The law also provides for a number of civil remedies that can be used to impose prohibitions on individuals involved in perpetrating CSE including Sexual Offences Prevention Orders ( SOPOs - available post-conviction of an offence) and Risk of Sexual Harm Orders ( RSHOs - that do not require a prior conviction). ^[29] SOPOs and RSHOs will be replaced in Scotland by Sexual Harm Prevention Orders and Sexual Risk Orders when Chapters 3, 4 and 6 of Part 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 are brought into force by commencement regulations made by Scottish Ministers.

There are also civil orders provided for in the Human Trafficking and Exploitation (Scotland) Act 2015 - trafficking and exploitation prevention orders and trafficking and exploitation risk orders - which, when the provisions are brought into force, can be imposed on people who have committed or pose a risk of committing various trafficking and exploitation offences. ^[30] These orders could therefore potentially be used in the context of trafficking for the purposes of CSE.