This a short blog on the law and the sentencing of sexual communication with a child cases.
A suspect aged 18 or over commits an offence if:
1. for the purpose of obtaining sexual gratification, he or she intentionally communicates with another person, and
2. the communication is sexual, or is intended to encourage the other person to make a communication that is sexual, and
3. the other person is under 16, and the suspect does not reasonably believe that the other person is 16 or over.
A communication is sexual if any part of it relates to sexual activity, or a reasonable person would, in all the circumstances consider any part of the communication to be sexual.
It is a defence for the suspect to raise a reasonable belief that the person with whom he/she was communicating was over 16.
Or that the communication was not sexual or was not intended to encourage a communication that was sexual.
Or that the communication with the child was not intentional or for the purposes of obtaining sexual gratification.
The success of such any defence would depend upon the available evidence in each case.
The maximum sentence for sexual communication with a child is 2 years.
From 1st July 2022 the Court will follow guidelines when sentencing cases, the most important factors are Harm and Culpability.
Factors that increase harm are:
- Sexual images sent or received
- Significant psychological harm or distress caused
Factors that increase culpability are:
- Abuse of trust
- Use of threats or blackmail
- Targeting of a particularly vulnerable child
- Commercial exploitation
- Soliciting images
Depending on the presence or not of higher harm or higher culpability factors the starting points for sentencing range from 6 months to 18 months.
There are additional factors that can increase the sentence, these include:
· Having similar previous convictions
· The offender lying about their age
· Steps taken to prevent the victim from reporting the incident or supporting a prosecution
· Committing the offence under the influence of drugs or alcohol
· Encouraging the victim to recruit other victims
· Sustained or persistent communication
· attempting to dispose of or conceal evidence
Conversely, there are factors that can decrease the sentence, these include:
· Having no previous convictions
· Being genuinely remorseful – which is ideally expressed at an early stage
· Being of good character – which can be shown via letters of support
· Age or lack of maturity of the offender
· Mental disorder or learning disability link to the offending
· And demonstrating steps that have been taken to address offending behaviour – such as
therapy or counselling
If you were communicating with an undercover police officer or paedophile hunter type organisation, the offence will be treated as an attempt, and therefore it will be sentenced fractionally less serious than if you were communicating with a real child.
Also, you need to consider that you can get a reduction of up to one third on the expected sentence by pleading guilty at the earliest opportunity.
Although custody is the common starting point for sexual communication offences, it is important to understand that Courts can suspend a custodial sentence of up to 2 years.
A suspended sentence means you do not go to prison, as long as you stay out of trouble and complete any prescribed requirements, such as unpaid work for the community and rehabilitation courses, the custodial sentence will not be activated.
Sadly, some firms will scare you with the risks of prison sentences, it’s not helpful and it distracts you from dealing with your case in a proactive and productive fashion.
My advice is that going to prison is unlikely for straightforward sexual communication with a child offences.
Please note, matters become more serious and more complicated if there is an allegation that a suspect has arranged or attempted to meet a child to facilitate a child sexual offence.
I hope this short blog helps, if you need specific advice on your case, please book an appointment via my website.
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