Understanding the Legal Aspects of Sexual Communication with a Child

What is Sexual Communication with a Child?

Sexual communication with a child is often described as online grooming because, more often than not, conversations caught under the criminal law take place in online chat forums. However, the offence also catches other forms of communication, including for example, email, text messages, WhatsApp messages, Facebook messages and oral communications.

Sexual communication with a child is an offence contrary to Section 15A of the Sexual Offences Act 2003. In order to be found guilty of the offence, the prosecution must prove that:

– A person aged 18 or over (“the adult”);

– intentionally communicates with a person aged under 16 (“the child”);

– for the purpose of obtaining sexual gratification.

Additionally, it must also be proved that:

– the communication is sexual or is intended to encourage the child to make a communication that is sexual; and,

– the adult does not reasonably believe that the child is aged 16 or over.

What does sexual gratification mean?

It is an essential element of the offence that the adult is engaging in the communication for immediate or future sexual gratification. This means that the adult is taking pleasure or satisfaction from the sexual nature of the conversation at the time of the conversation, or intending to do so at some point.

What does sexual communication mean?

Simply having a conversation with a child online is not in itself an offence. It is the sexual nature and/ or content of the conversation that makes it illegal.

A communication is sexual if any part of it relates to sexual activity, or if a reasonable person would in all the circumstances consider the communication to be sexual.

Usually, it will be immediately apparent whether or not a communication is sexual, or whether the adult is trying to encourage the child to say something sexual. As most cases of sexual communication with a child involve written communication, a record of the chat is usually able to be retrieved which therefore provides conclusive evidence as to the nature and content of the conversation.

 Reasonable belief

Whether a belief is reasonable will be determined by considering all the circumstances of the case. This could include any steps the adult had taken to ascertain the age of the child, or something the child had told the adult about themselves or their development which is indicative of age (e.g. that they had a good day at school) or the child’s appearance if a photo of them appeared on the chat forum.

Paedophile hunters / vigilante groups

It is increasingly common for members of the public to form groups and use online chat forums to pose as children and engage adults in sexual conservations. They do so in order to expose or ‘catch’ paedophiles and report them to the police.

In these circumstances, the elements of the offence of sexual communication with a child may not made out if the person the adult is communicating with is not in fact under 16. Rather, they are likely to be an adult pretending to be a child. Therefore, the alternative offence of ‘attempting’ to engage in sexual communication with a child would likely be charged.

What is the sentence for sexual communication with a child?

There are usually a number of factors which the court will need to balance in order to arrive at the appropriate sentence. The sentencing guidelines for this offence can be found here: https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/sexual-communication-with-a-child/

The court will first determine the ‘harm’ caused as a result of the offending. This involves a decision as to whether the offence falls within category 1 or 2. A category 1 offence involves conversations where sexual images or digital media have been exchanged, or where significant psychological harm or distress was caused or intended to be caused to the victim. Category 2 cases are less serious in that they include cases where category 1 factors are not present.

Next, the court considers the offender’s ‘culpability’ or blameworthiness. Culpability A factors include the use of threats, bribes or gifts, group offending and commercial exploitation or motivation. Culpability B cases are less serious in that they include cases where culpability A factors are not present.

Once the categories of Harm and Culpability have been decided, it is possible to identify the starting point for sentence. This could range from a community order (engaging with the probation service) for the less serious offences, up to 2 years imprisonment for the more serious offences, or repeat offenders.

Will I be put on the sex offender’s register for sexual communication with a child?

If you are convicted of engaging in sexual communication with a child, you will automatically be made subject to the notification requirements of the sex offender’s register.

How can we help?

Our team of criminal defence solicitors specialise in sexual offences. Contact us for a confidential, discreet discussion about your circumstances as obtaining legal advice early on from specialist sexual offence solicitors can make a significant difference to the outcome of your case.