Protecting children: review of section 12 of the Children and Young Persons (Scotland) Act 1937 and section 42 of the Sexual Offences (Scotland) Act 2009 - consultation

Part 5. Criminal law in relation to sexual abuse of trust

5.1 It is a criminal offence at Part 5 of the Sexual Offences (Scotland) Act 2009 (‘the 2009 Act’) for any adult to engage in sexual activity with a child under the age of 16.

5.2 In addition, sections 42-45 of the 2009 Act provide that an adult who engages in sexual activity with a child under the age of 18 in respect of whom they are in a ‘position of trust’ also commits an offence.

5.3 The position of trust offence reflects the fact that, while the ‘age of consent’ is 16, adults who are in a position where they have particular power, influence or control over a child should not engage in sexual activity with them, irrespective of whether they have attained the age of consent as doing so amounts to a breach of a position of authority and trust.

5.4 The 2009 Act defines a ‘position of trust’ for the purposes of the offence as including those who look after children in a range of institutional settings, including schools, hospitals and residential establishments such as care homes or young offenders’ institutions. It also provides that a ‘position of trust’ exists if a person lives with a child and has or had any parental responsibilities or rights in respect of that child, or treats the child as a child of their family.

5.5 There have been views expressed that the existing definition of a ‘position of trust’ may be seen as too narrow as it does not include all the roles in which an adult may have particular power, influence or control over a child. For example, it does not include sports coaches, music tutors or people providing religious instruction, except where they are performing such a role while looking after children in an institution such as a school (which is covered by the offence).

5.6 There is an argument that people performing such roles are in a position of trust in relation to the children whom they are coaching or tutoring, in the same way that those who look after children in, for example, schools or residential institutions are, and therefore should be included within the scope of the offence of sexual abuse of trust’.

5.7 However, it is also important to recognise that, in contrast with the existing ‘positions of trust’, coaching or tuition can be provided to children on an informal basis. For example, an eighteen year old may help a seventeen year old friend with school work or provide coaching or training in music or sport, and it is important that any law extending the scope of the ‘abuse of trust’ offence is sufficiently clearly framed that it does not create uncertainty as to the circumstances in which a person is or is not in a position of trust in relation to a child.

5.8 The Health and Sport Committee of the Scottish Parliament’s Report on Child Protection in Sport sought the Scottish Government’s views on a recommendation by the NSPCC to extend the ‘abuse of trust’ offence to cover persons undertaking ‘regulated work’ with children within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 ("the 2007 Act"). ‘Regulated work’ is defined at Schedule 2 to that Act and covers a very wide range of positions, including anyone who has unsupervised contact with children by arrangement with a responsible person, anyone who teaches, instructs, trains or supervises children and anyone who provides advice or guidance to children which relates to physical or emotional well-being, education or training.

5.9 It is not clear that all the roles falling within the definition of ‘regulated work’ with children necessarily involves that person being in a position of power, influence or control in respect of a child. Some of the roles covered by "regulated work" are very broad and while a position of trust could easily arise where such a role is performed over a substantial period of time, it might be less clear that a person undertaking some forms of "regulated work" would have a particularly close connection with a child or children. For example, a person driving a bus for a sports team made up of 16 and 17 year old children may be undertaking "regulated work" with children but it is not clear that such a position amounts to a position of trust in the way that the existing roles covered by the offence at section 42 of the 2009 Act are. Similarly, it might also be less clear that any particular power or influence would arise where "regulated work" is performed over a shorter period by someone not far apart from the child in age. The roles also cover positions which may be formal or informal in nature.

5.10 The definition of "regulated work" covers positions which may be formal and or informal in nature, and is quite complex ^[33] which means that, in some circumstances, people undertaking ‘regulated work’, especially where they are doing so on a voluntary and fairly informal basis, may not always be aware that they are doing so. However, there may be scope to adopt a more focused version of the definition of ‘regulated work’ in considering how the ‘abuse of trust’ offence could be expanded to cover other situations in which a person is in a position of trust.

Question 19

Do you have any comments on whether the definition of a ‘position of trust’ should be extended to cover other positions in which a person is in a position of power, responsibility or influence over a child?

Question 20

Do you have any other comments on the ‘sexual abuse of trust’ offence at sections 42-45 of the Sexual Offences (Scotland) Act 2009?