Continued from last week
Abuse of position of trust: sexual activity with a child
18. (1) A person (“the accused”) commits the offence of sexual activity with a child under eighteen years of age by abusing a position of trust in relation to that child (“the complainant”) if-
(a) The accused-
(i) engages in sexual activity with the complainant;
(ii) causes the complainant to engage in sexual activity with a third party; or
(iii) causes the complainant to perform sexual acts including causing the complainant to masturbate.
(b) the accused is in a position of trust in relation to the complainant by virtue of circumstances within section 19 (1) (a), (b) or (c) and is not in a position of trust by virtue of other circumstances; and
(c) the accused knows or could reasonably be expected to know of the circumstances by virtue of which the accused is in a position of trust in relation to the complainant.
(2) Where in proceedings for an offence under this section it is proved that the accused was in a position of trust in relation to the complainant by virtue of circumstances within section 19 (1) (a), (b) or (c) and it is not proved that the accused was in a position of trust by virtue of other circumstances, it is to be taken that the accused knew or could reasonably have been expected to know of the circumstances by virtue of which the accused was in such a position of trust unless prima facie evidence is adduced to raise an issue as to whether the accused knew or could reasonably have been expected to know of those circumstances.
(3) A person who commits an offence under this section is liable-
(a) Where the sexual activity included sexual penetration, on conviction on indictment to imprisonment for life;
(b) in any other case-
(i) on summary conviction, to a fine of one million dollars and to imprisonment for five years;
(ii) on conviction on indictment, to imprisonment for ten years.
(4) A person (“the accused”) does not commit an offence under this section if-
(a) at the time the complainant is sixteen years of age or over and the accused and the complainant are lawfully married; or
(b) immediately before the accused entered into a position of trust with the complainant, a sexual relationship existed between them.
(5) Subsection (4) (b) does not apply if at the time referred to in that subsection sexual intercourse between the accused and the complainant would have been unlawful.
(6) In proceedings for an offence under this section it is for the accused to prove the matters mentioned in subsection (4) (a) and (b)
19. (1) For the purpose of sections 14, 15 and 18, the positions of trust in relation to the accused and the complainant include, where –
(a) the accused looks after persons, including the complainant, detained in an institution by virtue of a Court Order or under any law;
(b) the accused looks after persons, including the complainant, who are accommodated and cared for in one of the following institutions-
(i) a hospital
(ii) an independent clinic
(iii) a care home, residential care home or private hospital; or
(iv) a community home, voluntary home, children’s home or orphanage;
(c) the accused looks after persons who are receiving education at an educational institution (whether in the role of teacher or in another role) and the complainant is receiving, and the accused is not receiving, education at that institution;
(d) the accused is the guardian of the complainant;
(e) the accused is not appointed to be the guar-dian of the complainant but is the legal or reputed husband or wife of one of the complainant’s parents or guardians;
(f) the complainant is in vocational training and the accused looks after the complainant on an individual basis; or
(g) the accused is a social worker, probation officer, coach, instructor, minister of religion, babysitter, child-minder or has a welfare position in relation to the complainant, and has regular unsupervised contact with the complainant.
