Sexual Abuse of Trust
Part 5 of the consultation document focused exclusively on the criminal law in relation to sexual abuse of trust.
At present, it is a criminal offence for any adult to engage in sexual activity with a child under the age of 16. In addition, sections 42-45 of the Sexual Offences (Scotland) Act 2009 ('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. This reflects that adults in a position of trust may have particular power, influence or control over those in their care, and that it would be a breach of authority and trust to engage in sexual activity with that child, irrespective of whether they have attained the age of consent.
Defining Position of Trust
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.
Historically, views have been 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 (including those carrying out regulated work with children and young people,and including those who work with children on both a formal and informal basis). This may include, for example, 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 already covered by the offence).
As part of the consultation, views were sought on whether the law should extend the scope of the 'abuse of trust' offence, ensuring that it 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.
Q19. 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?
This question attracted a large number of responses (172) with the majority coming from individuals (137 individuals compared to 35 organisations). The organisations that responded were mainly third sector support organisations or public bodies (including Child Protection Committees).
A number of responses from individuals were largely the same in their content, suggesting they may have been generated from a campaign. All, however, were included in the analysis and counted as individual responses in their own right.
Among those who offered support for this proposal, and agreed that the 'position of trust' should be extended to a wider range of people working with children, most also commented that it should extend beyond the definition of those doing 'regulated work'. The main suggestions for who it should include were:
- sports coaches;
- music tutors and tutors in theatre and arts;
- church leaders;
- youth workers; and
- tutors or instructors (paid and unpaid).
Other groups that were mentioned by just one or two respondents each (including some who are already covered by existing law) were college/university staff, teachers, child care workers, advocacy workers, scout leaders, babysitters, medical professionals, charity workers, befrienders, social workers, teachers, kinship and foster carers, civil servants, the police, celebrities, politicians and other 'officials'.
The vast majority of respondents (individuals and organisations) felt that the definition should be very broad:
"We believe that all children and young people have the right to be safe and protected across all aspects of their life, a belief which is firmly in keeping with Getting It Right for Every Child (GIRFEC), the Scottish Government's national approach to child well-being. This means that a child or young person's right to protection should not be restricted to roles held by adults within statutory or institutional settings. The same level of protection must be provided to ensure that children and young people can safely fulfil their right to participate in leisure and recreational activities. (UNCRC Article 31). We therefore strongly believe that in order to better protect young people from abuse this loophole must be closed - it is not enough to simply make the loophole smaller." [Third Sector Organisation]
Many of those who supported the proposal made reference to recent high profile media cases of abuse of trust and suggested that this provided evidence of a need for change (especially the need to cover sports coaches and religious leaders in the offence).
Among those who supported extension, it was recognised that there would be challenges in providing a definition which allowed for situations where there is a consensual sexual relationship between peers of a similar age (over 16) but where there may also be an informal support, mentoring or coaching element to the relationship. Others also commented that the notion of influence may be subjective:
"I support widening the definition of a person in a position of trust in principle certainly covering having power and responsibility. Defining 'having influence' could be rather difficult to pin down." [Individual]
Some noted that using the regulated work definition was too restrictive and would not effectively capture what is meant by a 'position of trust':
"I am not convinced that the "regulated work" approach is appropriate, for regulation of work is based on different principles from those underpinning the "position of trust" offence. But I do accept that the offence could usefully be expanded to include those whose position gives them the power to exploit their control of or authority over the young person." [Individual]
One third sector organisation stressed that they felt it would be inappropriate to create a pre-determined list of roles or jobs to which this offence would apply, as this could result in checks being missed, which would potentially increase the risk of harm to children:
"If a role is not on the pre-determined list, an organisation may assume they do not need to consider whether a PVG check should take place rather than considering how and when the person in that specific role in their organisation may have contact with children. A pre-determined list of roles may also cause confusion where organisations use different or interchangeable names for different roles." [Third Sector Organisation]
An extension to the 'abuse of trust' offence needed to be considered in conjunction with the proposal to replace the definition of 'regulated work' in the Protection of Vulnerable Groups (Scotland) Act 2007 with a list of 'protected roles, it was suggested.
Several respondents also commented that a 'position of trust' needed to be defined with reference to the child's perception and understanding of the relationship at hand:
"It is important that the concept of position of trust encapsulates a general understanding of that role and the child's view of that position - based on issues such as habity [sic] expectation, purpose of contact and considering whether the person has regular contact with a child in relation to a role or task; and/or whether a child knows the person as someone with whom they are in regular contact and in whom they have developed a trust, meaning that the person is perceived as predictably safe within this contact." [Public Sector Organisation]
Very few comments were put forward against this proposal. Some individuals commented that they perceived the Scottish Government should not interfere with family life unnecessarily or unless criminality could be proved (although these comments may have been in reference to earlier parts of the consultation), and one respondent perceived that sufficient legislation and safeguards were already in place.
One respondent indicated that they felt the change may be a "complex process" and lead to "a potentially litigious environment" and that this would reduce the positive impact of a wide range of "informal' roles":
"We would question the need to extend this specific section with regard to proportionate impact it may have. Whilst acknowledging that this requires the risk to by managed out with section 12, we are not convinced of the benefit in extending this section compared to the risk." [Public Sector Organisation]
Two respondents suggested that there was also a need to ensure that those working with children were protected from any potentially false or malicious allegations made by children.
One final organisation expressed disappointment that Section 42 of the Sexual Offences (Scotland) Act 2009 had not been given more weight or focus in the current consultation document.
Q20. Do you have any other comments on the 'sexual abuse of trust' offence at sections 42-45 of the Sexual Offences (Scotland) Act 2009?
Only 15 respondents provided substantive responses to this question. One of these (an individual) simply commented that they had no experience in this regard and another said that they felt the existing offence was 'valid' and should remain.
Among the other 12, (10 organisations and 3 individuals), the main comments were that caution needed to be taken not to criminalise young people inappropriately, especially those working in the sports sector as volunteers and who may be particularly vulnerable to any proposed changes:
"Our members would request caution and careful consideration in progressing any widening of this definition, to ensure that any legislative amendments are fit for purpose and do not result in unintended consequences for young people, including those both participating and/or volunteering, or for Scottish sport." [Sports Organisation]
"There is clearly a need to ensure that any widening of the legislation to sport effectively encapsulates roles that are in a position of trust, but without being unnecessarily broad or leaving uncertainty as to which roles are covered." [Sports Organisation]
Others, including one of the sports organisations quoted above, highlighted the importance of how the new offence was communicated, if adopted, including awareness raising in the professional and public spheres:
"Any amendment should be supported by an education and awareness programme which alerts those in such positions (especially where these previously would not have been captured by the legislation)." [Sports Organisation]
Organisations working in the sports field expressed a desire to assist with any ongoing engagement in updating sections 42-45 and in raising awareness of the changes, if introduced. Three organisations commented that they were content with the existing offence but welcomed that new guidance would assist with interpreting the law in practice:
"…section 43(7) of the Sexual Offences Act 2009 is probably enough of a 'catch all' already in relation to the sexual abuse of trust - but that new guidance on the application of the relevant sections (42-45) would help clarify and determine matters." [Public Sector Organisation]
"Given the wide variety of roles that are covered by 'regulated work' with children and young people, including formal and informal volunteer roles, it is important that information and guidance for people in 'regulated work,' goes hand in hand with the legislative change, to ensure that everybody understands their roles and responsibilities to children and young people." [Third Sector Organisation]
One third sector organisation viewed that it was important that there were concessions made to ensure that these measures would apply only to people in a 'position of trust', and not to consensual relationships.
One respondent commented that there may be financial implications of a change to the law and one individual used this question to comment that the consultation had been "difficult to understand, too lengthy and time consuming".
Finally, a minority view was expressed that the Review of Section 42 of the Sexual Offences (Scotland) Act 2009 had perhaps not received sufficient attention within the consultation overall and there was a call for this to be consulted upon separately, rather than subsumed alongside the section 12 offence review.