The Sexual Offences Act 2003 is a bold reform of existing legislation.

Paul Lewis runs the rule over the fine print

The Sexual Offences Act 2003 is the most comprehensive reform of sexual offences legislation in 50 years, and much of the existing legislation is now considered incoherent, archaic and discriminatory.

The Act is in two parts.

Part 1 is a clarification, revision and amendment of sexual offences, all of which are designed further to strengthen the law on sex offences and to modernise penalties to give the public greater confidence and better protection.

The Act provides for new offences that clearly set out what is acceptable sexual behaviour, together with appropriate penalties.

It is clearly the government's aim to provide stricter guidelines on how cases are to be dealt with.

The maximum sentences available to courts and the venue for trial will often depend on the conduct alleged in each case.

The Act creates a wider definition of rape and the offence of indecent assault is abolished and replaced with a series of sexual assault offences that cover a much wider range of behaviour than under the 1956 Act and also carry greater penalties on conviction.

There is a tougher, objective test of consent, which is partially a response to the low rate of convictions in rape cases.

A defendant's honest, but mistaken, belief in the other party's consent will no longer be a defence under the new legislation.

There is a clear obligation on someone who is about to have sexual intercourse with another person not to act negligently in terms of whether consent is present or not.

The legislation goes further and allows in certain circumstances rebuttable presumptions about the absence of consent, which the defendant will need to rebut and, in an even more Draconian measure, there will be in certain circumstances conclusive presumptions about the lack of consent.

This will clearly have an early impact on the advice given to suspects in police stations, with an emphasis on rebutting the presumptions against consent being raised at an early stage in proceedings by defendants.

These presumptions apply to several offences within the legislation.

The Act aims to provide a clearer framework and accordingly many of the anachronisms in the current law are to be repealed.

For example, at present, a man younger than 24 has a defence to a charge of unlawful sexual intercourse if he has not previously been charged with a similar offence and reasonably believed the girl to be 16 or older.

This so-called 'young man's defence' will no longer be available.

Consistency and clarity in sentencing is a clear aim of the Act, with many of the existing maximum sentences increased.

In many cases, the maximum sentence available to the court and the venue at which the trial may take place, will be dependent on the sexual conduct alleged and the age of the defendant and victim.

A key theme of the 2003 Act is the protection of the vulnerable in society.

Offences have been created to protect children and the mentally disordered from abuse within the home and elsewhere.

The protection comes in the form of a series of offences and stricter penalties for those convicted.

Existing legislation meant that a person luring a child to meet them for a sexual purpose could rarely be charged, as no offence had actually occurred.

The new offence of 'grooming' is created to combat just such a scenario.

Similarly, conduct that may have fallen short of a sexual offence under previous legislation will now be covered - for example, causing a person with a mental disorder to watch a sexual act will be an offence even if the person with the mental disorder does not actively participate.

Care workers, including teachers or those with a responsibility for caring for children, will generally be prohibited from engaging in sexual contact with vulnerable persons even when there is de facto consent.

For example, a teacher who engages in heavy petting with a 17-year-old pupil may be prosecuted despite the fact that the 17-year-old very clearly consents to that activity.

A new range of familial sexual offences is further designed to protect children from abuse within the home.

A person who causes a child to engage in sexual activity can now be prosecuted.

In Fairclough v Whipp (35 Cr App R 138, DC), the defendant exposed his penis in the presence of a young girl and invited her to touch it, which she did.

As she had done so on the invitation of the defendant, the matter could not be prosecuted as an indecent assault.

This is precisely the sort of behaviour that the offence is designed to protect against.

Abuse of children and adults through prostitution is growing, and in an effort to combat this the Act makes several amendments to existing legislation as well as creating several offences that are international in scope.

For example, a person guilty of controlling another person's involvement in pornography in any part of the world faces imprisonment for up to 14 years.

In further efforts to combat international sex offences, the law is strengthened to prevent trafficking of persons to be used in sex crimes.

The second part of the Act strengthens the reporting and notification requirements first created in the Sexual Offenders Act 1997, which is now abolished in its entirety.

Under the new Act, parents can be ordered to ensure that their children who are required to go to the police station to sign the sexual offences register do so, or face imprisonment themselves if they fail to comply.

The Act also creates a range of civil orders, preventative and otherwise.

The orders, which in many respects are similar to anti-social behaviour orders, are Draconian in nature and can prevent a defendant from travelling abroad or from doing anything specified in the order.

The orders available are notification orders, sexual offences prevention orders, foreign travel orders and risk of sexual harm orders.

The Sexual Offences Act 2003 set out to be a bold reform of sexual offences legislation, and to that extent it has achieved its aim, although an opportunity was missed to consolidate all existing legislation into one cohesive statute.

While the Act was partly born out of public concern about sexual offences and offenders, the quid pro quo is a tougher deal for defendants and a new regime with which legal representatives will need to familiarise themselves quickly.

Paul Lewis is a Partner at David Phillips & Partners in Liverpool and the author of Sexual Offences Act 2003: A Guide to the New Law (Law Society Publishing, 34.95 plus 3.50 postage and packing), available now from Marston Book Services, tel: 01235 465656