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Engaging in sexual activity in the presence of a child / causing a child to watch

Sexual offences — practical elements, sentencing links and station notes for accredited reps in England & Wales.

Sexual offences

Engaging in sexual activity in the presence of a child / causing a child to watch

Sexual Offences Act 2003, ss.11–12

England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.

Triable
Either way
Maximum penalty
10 years’ custody

Actus reus

  • A (18 or over) intentionally engages in a sexual activity when another (B) is present or is in a place from which A can be observed (SOA 2003, s.11). s.12 is causing a child to watch a sexual act. Check the section.

Mens rea

  • For the purpose of obtaining sexual gratification. A knows or believes that B is aware, or intends that B should be aware. B is under 13, or A does not reasonably believe B is 16 or over.

Defences

A under 18 (wrong section) · Not for sexual gratification · B not present / could not observe / A did not know, believe or intend awareness · Reasonable belief B was 16 or over (if B is not under 13)

Sentencing Council

Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 6 years’ custody.

View definitive guideline ↗

At the police station

s.11 and s.12 are different. Presence is not enough without the gratification purpose and awareness mental element.

When to involve a rep or solicitor

Police station advice is free under legal aid and is not means-tested. For this allegation we would normally want a solicitor involved early.

Authoritative sources for this page

Statute plus Sentencing Council (and CPS where listed) are the two primary sources we used for mode of trial, maximum and elements. Case links are from our verified registry only.

More in Sexual offences

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Sources & further reading

Links are to official publishers (legislation, gov.uk, CPS, LAA, Sentencing Council). Case law on this site is limited to entries in our verified case-law registry. Always confirm the current version before relying on it in live advice.