What are we going to do? 

Intimate images 

The bill introduces new offences for the taking of intimate images without consent and the installation of equipment with intent to enable the taking of intimate images without consent. These offences are designed to complement, and in some respects mirror, the offences of sharing, or threatening to share, intimate images in the Sexual Offences Act 2003 (the 2003 Act), as inserted by the Online Safety Act 2023. They are closely based on the recommendations from the Law Commission in its report ‘Intimate Image Abuse’, published in July 2022. Taken together, these measures will give law enforcement agencies a holistic package of offences to effectively tackle this abhorrent behaviour.  Encouraging or assisting serious self-harm 

The Online Safety Act 2023 gave partial effect to the Law Commission recommendation to create an offence, modelled on the offence of encouraging and assisting suicide, to tackle the encouragement of self-harm. It did so by introducing a new offence of encouraging or assisting serious self-harm by means of verbal or electronic communications, publications or correspondence. 

To give full effect to the Law Commission recommendation, the bill will introduce a broader offence of encouraging or assisting serious self-harm to cover all means by which serious self-harm may be encouraged or assisted, including by any means of communication and in any other way. 

Sexual activity with a corpse 

The bill increases the maximum penalty for sexual penetration of a corpse from two years’ imprisonment to seven years’ imprisonment and will expand the scope of the criminal law to criminalise non-penetrative sexual touching of a corpse with a penalty of 5 years’ imprisonment. 

Exposure 

The bill amends the exposure offence at section 66 of the Sexual Offences Act 2003 (“the Act”) to capture a broader range of intent elements, including those who expose their genitals with the intent to cause the victim “humiliation”, or for the purpose of obtaining sexual gratification whilst being reckless as to whether the person who sees their genitals will be caused alarm, distress or humiliation. 

Sexual activity in the presence of child or adult with mental disorder  The government is amending a range of offences in the Sexual Offences Act 2003 to capture a broader range of culpable behaviour where a person intentionally engages in sexual activity in the presence of a child or a person with mental disorder for the purpose of obtaining sexual gratification.   

Child abduction 

The bill closes a legislative gap by amending the Child Abduction Act 1984 (the 1984 Act) to make it an offence for a parent or person with similar responsibility for a child, i.e. a guardian or someone with custody of the child etc; to detain that child outside the UK without the consent of the other parent or persons with similar responsibility, or of the court.  

Polygraph testing of serious sexual offenders 

The bill extends polygraph testing to more serious offenders released on licence from prison who pose a threat of sexual and terrorist harm. This includes offenders convicted of murder who are assessed as posing a risk of sexual offending on release; and offenders convicted of concurrent offences where the sexual offence expires before the non-sexual offence meaning that, currently, they cannot be polygraph tested for the duration of their licence. 

How are we going to do it? 

Intimate images 

The bill repeals two existing voyeurism offences that relate to the recording of a person doing a ‘private act’ and recording an image beneath a person’s clothing (the so-called ‘upskirting’ offence) in sections 67(3) and 67A(2) of the 2003 Act respectively and replace them with three new offences: 

(a) A new ‘base’ offence of taking or recording an intimate photograph or film without consent or a reasonable belief in consent; 

(b) A new offence of taking or recording an intimate photograph or film without consent and with intent to cause alarm, distress or humiliation; and 

(c) A new offence of taking or recording an intimate photograph or film without consent or reasonable belief in it, and for the purpose of sexual gratification of oneself or another. 

These new offences cover a broader range of behaviours than current offences, providing greater protection for victims. 

The bill introduces new offences that criminalise someone if they install, adapt, prepare or maintain equipment, and do so with the intention of enabling themselves or another to commit one of the three offences of taking or recording an intimate photograph or film without consent.  

All these offences will extend to and apply in England and Wales. Victims of any of these new offences may qualify, where applicable, for anonymity and special measures.  

The bill also amends the Sentencing Code to ensure Courts have the power to order, upon conviction, that the offender be deprived of any images in respect of which they were convicted of a taking or recording offence, as well as anything on which the images were stored (such as a computer or hard drive). The Courts already have this power in relation to offenders convicted of sharing intimate images without consent. 

Encouraging or assisting serious self-harm 

The bill will repeal the offence at section 184 of the Online Safety Act 2023 (in relation to England and Wales) and replace it with a broader offence that covers encouraging or assisting serious self-harm both by means of communication and in any other way. 

Sexual activity with a corpse 

The measure will replace the existing offence of ‘sexual penetration of a corpse’ at section 70 of the Sexual Offences Act 2003 (“the Act”) with a new offence which includes non-penetrative as well as penetrative “sexual touching” of a corpse with a penalty of five years imprisonment. The sexual penetration of a corpse will carry a higher maximum penalty of seven years’ imprisonment.   These offences will extend to and apply in England and Wales. 

Exposure  

The bill extends the existing offence at section 66 of the 2003 Act to make it a criminal offence for someone to intentionally expose their genitals, where they intend that someone will see them and be caused alarm, distress or humiliation, or where someone exposes their genitals for the purpose of obtaining sexual gratification and does so with the intention that someone will see them, and is reckless as to whether someone who sees them will be caused alarm, distress or humiliation. Currently, section 66 only makes it a criminal offence for someone to intentionally expose their genitals where they intend that someone will see them and be caused alarm or distress.  These offences will continue to apply in England and Wales only. 

Sexual activity in the presence of child or adult with mental disorder  

The 2003 Act contains a range of offences (sections 11, 18, 32, 36 and 40) to target a range of situations where a person intentionally engages in sexual activity in the presence of a child (or a person with a mental disorder) for the purpose of obtaining sexual gratification. At present, the offences are only committed where the person knows or believes that the child or person with mental a disorder is aware of the activity, or the person intends that the child or person with a mental disorder be aware of the activity.    These provisions will amend the mental elements of these offences by removing this requirement in order to capture situations where a person intentionally engages in sexual activity in the presence of a child or person with a mental disorder for the purpose of sexual gratification, even if they do not necessarily intend the child or the person with a mental disorder to be aware of the activity, or do not know or believe that the child or person with a mental disorder is aware.   

Government does not, however, want to criminalise those who engage in sexual activity in the presence of a child who do not do so for the purposes of obtaining sexual gratification from the child’s presence e.g. parents sharing a bedroom with a young baby. In those circumstances the presence of a child is incidental, and the bill therefore retains the requirement for the activity to occur in the child or person with a mental disorder’s presence for the purpose of obtaining sexual gratification. This will serve the purpose of excluding non-malicious behaviour from scope of the offences.   

These offences will continue to apply in England and Wales only. 

Child abduction 

Section 1 of the 1984 Act makes it an offence for a parent, or person with similar responsibility, to take or send a child out of the UK without the consent of the other persons with responsibility for the child, or of the court.  The case of R (on the application of Nicolaou) v Redbridge Magistrates’ Court [2012] EWHC 1647 (Admin) made clear that it is not a criminal offence, however, for a parent who has lawfully removed a child from the UK to keep that child outside the UK for longer than the permitted period. In contrast, section 2 of the 1984 Act makes it an offence for a person other than a parent to take or detain a child out of the control of any person entitled to lawful control, whether or not the child is taken out of the UK.    

The bill amends section 1 of the 1984 Act to create a new child abduction offence. At any time after a child is taken or sent out of the UK with the appropriate consent, it will now be an offence for a parent or person with similar responsibility to detain that child outside the UK without the appropriate consent.  

Polygraph testing of serious sexual offenders 

Sections 28-30 of the Offender Management Act 2007 provide for polygraph testing in the Probation Service. For an individual to be eligible for the licence condition, they must meet a set of criteria, including actively be serving a custodial sentence of 12 months or more for a relevant sexual offence. The Probation Service already has a policy framework in place which sets out the mandatory requirements for how polygraph testing is used. This will be revised to include these groups: 

1. For offenders convicted of murder, the Secretary of State will determine whether they meet the relevant criteria based on the risk they pose of committing a relevant sexual offence on release on licence 

2. For offenders convicted of an offence who, at any earlier time in that sentence, were also serving a prison sentence for a relevant sexual offence, they will be eligible for polygraph testing. 

Background 

Intimate images 

Intimate image abuse is the non-consensual taking or sharing of photographs or film that show or appear to show the victim in an ‘intimate state’ as defined in section 66D(5) of the Sexual Offences Act 2003 (that is, with their breasts, genitals, or buttocks (partially) exposed, engaged in sexual behaviour, or toileting). It is a gross violation of the victim’s bodily and sexual autonomy and can be highly intrusive, humiliating and distressing. These are crucial steps in delivering on our commitment to halve the prevalence of violence against women and girls. We must ensure our criminal law enables us to tackle perpetrators, better protect victims and survivors, and deliver effective justice.  Some of the behaviour of taking an intimate image without consent may in certain circumstances already be caught by existing offences, for example, by the voyeurism offence at section 67(3) of the Sexual Offences Act 2003.  For example, it is currently an offence to take a photo or record a video up a woman’s skirt in a public place without her consent, but it is not currently an offence to take a photo down a woman’s top, showing her breasts in a public place without her consent. Under these provisions, this will be a criminal offence.  The Law Commission, in their July 2022 Report, “Intimate Image Abuse”, recommended a package of offences to update the laws relating to taking and sharing intimate images without consent. Sharing offences were previously introduced via the Online Safety Act 2023. The new offences will strengthen the law in relation to the taking of intimate images without consent and the installation of equipment with the intention of enabling or another to commit one of the three taking or recording offences.   Refuge reported that 1 in 14 adults in England and Wales have experienced threats to share intimate images or videos. That is the equivalent of 4.4 million people. The problem of abuse appears to be growing with the Revenge Porn Helpline receiving nearly 19,000 reports in 2023 (a 106% increase since 2022 and a tenfold increase in five years). In 71% cases of intimate images shared without consent the victim was female, and in over 81% cases, the perpetrator was male. 78% of voyeurism cases reported to the Helpline also involved a female victim. 

Encouraging or assisting serious self-harm 

Encouragement of suicide, or self-harm falling short of suicide, is a matter of great concern. It is already an offence under the Suicide Act 1961 (the 1961 Act) to encourage or assist the suicide or attempted suicide of another person. 

In their Modernising Communications Offences report, published in July 2021, the Law Commission said, in reference to creating an offence of encouraging or assisting a person to non-fatally self-harm, that any criminal law solution in this complex area must be properly constrained to ensure that it does not disproportionately impact vulnerable people who harm themselves. They recommended a narrow offence with a robust fault element that targets the deliberate encouragement or assistance of serious non-fatal self-harm. The formulation of the recommended offence was very similar to the existing offence, under section 2 of the 1961 Act, of encouraging or assisting suicide. 

In response to concerns raised in Parliament during the passage of the 2023 Act, a new offence of encouraging or assisting serious self-harm by means of verbal or electronic communications, publications or correspondence was created. This proposal is to repeal the offence in the Online Safety Act 2023 and replace it with a broader offence that replicates the conduct and mental elements set out in the communications offence, but can be committed by any means of communication, and in any other way (including, for example, direct assistance through the provision of bladed articles with which to self-harm). 

Sexual activity with a corpse 

Section 70 of the 2003 Act criminalises the ‘sexual penetration of a corpse’, with a maximum penalty of two years’ imprisonment.  Given the impact that both penetrative and non-penetrative sexual activity with a corpse can have on the family of the deceased, the government intends to replace the existing offence with a broader offence of ‘sexual activity with a corpse’. This will (i) raise the maximum penalty of penetrative activity to seven years’ imprisonment; and (ii) expand the criminal law to capture non-penetrative sexual activity with a corpse with a maximum penalty of five years’ imprisonment. 

Exposure  This change will align the intent elements of the offence with the offence of “sending etc photograph or film of genitals” (colloquially known as the “cyberflashing offence”), at section 66A of the 2003 Act. Unlike the section 66 exposure offence, the section 66A offence already criminalises those who carry out the relevant act with intent to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification and are reckless as to whether the person will be caused alarm, distress or humiliation. The creation of the section 66A offence followed recommendations made by the Law Commission in their review ‘Modernising Communications Offences’.    

Adding these additional elements to offence at section 66 would ensure consistency between these analogous offences and strengthen protection for victims of this behaviour.  Sexual activity in the presence of child or adult with mental disorder  The police and Crown Prosecution Service have reported difficulties in prosecuting a number of cases involving this type of behaviour where there was insufficient evidence that the perpetrator knew, believed or intended that the person was aware of the sexual activity. The government therefore wants to expand the criminal law so that prosecution does not depend on the defendant’s intent that the victim be aware. This may include, for example, cases involving children who are sleeping when the defendant engages in sexual activity, such as masturbating whilst standing next to the child’s bed.  Child Abduction 

Reunite International, a leading UK charity, who specialise in international child abduction cases, claim there is an increasing trend away from wrongful abduction to wrongful retention of a child abroad. They believe that some parents see this as an ‘easier route’ to permanently keeping their child abroad, with no criminal charges or police involvement, and are therefore using this method to circumvent the law.  

Disputes involving children retained abroad without appropriate consent are usually resolved through civil dispute and family custody processes, rather than by the criminal law. The UK is a contracting State to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention). Under the 1980 Hague Convention, the court in the country where the child has been taken will decide whether the child should be returned to the country where they were habitually resident. Unlike the existing domestic criminal law in England and Wales, the 1980 Hague Convention treats the removal and retention of a child abroad equally.   

The government intends to close the legislative gap - and more closely align criminal and civil law in this area - by amending the 1984 Act as set out above. The consent of the Director of Public Prosecutions will be required to prosecute and the new offence will have a maximum penalty of seven years. This is the same penalty which currently applies to the offences at sections 1 and 2 of the 1984 Act. The proposed new offence will apply in England and Wales only.    

Polygraph testing of serious sexual offenders 

The Probation Service has been polygraph testing people with sexual convictions since 2014 and people with terrorist convictions since 2021. It has become an important risk management measure for managing these high-risk offenders who are released on licence from prison, providing probation practitioners with additional risk-related information that they otherwise would not have known. Polygraph does not replace any existing forms of risk assessment or management, rather it is an additional tool for probation practitioners. There are sanctions for individuals who give a significant response (commonly referred to as ‘failing’ a polygraph test) or make risk related disclosures during the tests; for example, increased reporting, the imposition of additional licence conditions or changes to the risk management plan such as being directed to reside in an Approved Premises. In addition, probation practitioners can change the focus of an individual’s supervision in order to address any issues that relate to any failed questions; those which had a significant response. 

Key statistics 

Encouraging or assisting serious self-harm 

Self-harm can occur at any age, but a recent study on young people aged 13 to 15 reported that prevalence was greater among girls (22.7%) than boys (8.5%). A national study reported that 7.3% of girls aged 11 to 16, and 3.6% of boys aged 11 to 16, had self-harmed or attempted suicide at some point. The figures for those aged 17 to 19 were 21.5% for girls and 9.7% for boys. 

One study of the prevalence of self-reported non-suicidal self-harm (NSSH) from 2000-2014 found increases in prevalence in both sexes and across age groups, most notably in women and girls aged 16-24. Male participants and those aged 16-34 years were less likely to have contact with health services than female participants and older people.   

Whilst the internet can be a valuable source of support for those experiencing a desire to self-harm or those who have suicidal feelings, it can also expose them to harmful content, including content purposefully generated by others to encourage people to self-harm. There is increasing evidence of links between internet usage and self-harm, with one study finding that, among self-harm hospital presentations, the prevalence of suicide and self-harm related internet use was 8.4% among adults and 26% among children and adolescents.   

Sexual activity with a corpse 

This is an incredibly rare offence. Prior to the case of David Fuller in 2020, published Ministry of Justice and Home Office statistics do not show this offence ever being sentenced as the principal offence. 

Only one offence has been prosecuted since 2017 prior to the David Fuller case in 2020, and fewer than 10 prior to 2017. 

Exposure  From the year ending March 2013 to the year ending March 2023, the number of recorded cases of indecent exposure and voyeurism nearly doubled, from 6,420 cases in the year ending March 2013 to 12,933 cases in the year ending March 2023. 

Sexual activity in the presence of child or adult with mental disorder  The National Police Chiefs Council (NPCC) have provided the MoJ and HO with details of six incidents from the past three years from different police forces, which were referred to the CPS by the police for a charging decision and for which a decision to take ‘no further action’ was subsequently made.  The six incidents provided by the NPCC are assumed to represent all cases which were reported for a charging decision over the past three years, equivalent to two cases per year.   

Polygraph testing of serious sexual offenders 

Since 2014, the Probation Service have completed more than 8500 polygraph tests on people released on licence from prison. 

On average, the department have found that offenders make risk-related disclosures in two-thirds of polygraph tests.  

Frequently asked questions 

Encouraging or assisting serious self-harm 

The Online Safety Act 2023 already includes an offence of encouraging or assisting serious self-harm. What additional behaviour will the broader offence cover? 

Unlike the offence in the Online Safety Act 2023, the new offence is not limited to encouraging or assisting serious self-harm by means of verbal or electronic communications, publications or correspondence. 

The broader offence will cover the encouragement or assistance of any form of serious self-harm where there is an intent to encourage or assist the other person to seriously self-harm. Like the offence in the 2023 Act, the broader offence is committed regardless of whether serious self-harm actually occurs. However, the broader offence will also include direct assistance such as giving someone a blade with which to self-harm. It also includes encouraging or assisting harmful eating disorder behaviours which, when engaged in by a person suffering an eating disorder, has the potential to meet the threshold of serious self-harm. 

How can you be sure that vulnerable people aren’t criminalised, and that mental health support material is not caught by this offence? 

The Law Commission considered this carefully and recommended two key elements to ensure that the offence does not disproportionately impact vulnerable people who harm themselves and constrains the offence to only the most culpable offending. These are: (1) that the defendant’s act must be intended to encourage or assist the serious self-harm of another person; and (2) that the defendant’s act is capable of encouraging or assisting the serious self-harm of another person. 

‘Serious self-harm’ means self-harm amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861. That is the threshold recommended by the Law Commission. The new broader offence, like the existing communications offence in the 2023 Act, includes both those elements. It targets those who intend by their act to cause another person to seriously self-harm. If a person does not intend to encourage or assist serious self-harm, then no offence is committed. 

Sharing experiences of self-harm, or simply discussing the issue, without such intention will not be a criminal offence. The broader offence will also not cover glorifying or glamorising self-harm. As the Law Commission rightly recognised, such an approach would be too wide and would risk criminalising vulnerable people who share their experiences of self-harm with no intention of encouraging others to self-harm. The broader offence therefore does not go further than is necessary to protect the public from such harmful acts and is therefore necessary and proportionate.   

Sexual activity with a corpse 

Why is seven years an appropriate statutory maximum penalty? Why not ten? 

The government has considered a range of options. Increasing the statutory maximum for the section 70 offence to seven years would be in keeping with other serious contact offences in the Act, whilst remaining lower than the most serious contact sexual offences against living victims – sexual assault and rape (with maximum penalties of 10 years and life imprisonment respectively).  

Is the statutory maximum penalty currently two years no matter how many offences the person commits?   

The statutory maximum set out in legislation is for a single offence. If a person receives multiple convictions for this offence, or if this offence is committed alongside other offences, the court may adjust the overall sentence to reflect the totality of the offending. 

Exposure 

Why is the government making this change?   

This amendment is needed to ensure consistency as to the intent elements of the exposure offence at section 66 of the 2003 Act, and the ‘cyberflashing’ offence at section 66A.  This reform will ensure that the exposure offence additionally captures those who expose themselves to cause the victim humiliation and also those who expose themselves in order to obtain sexual gratification whilst reckless as to whether the victim is caused alarm, distress or humiliation.   Adding these additional elements to the offence at section 66 will ensure consistency between these analogous offences and strengthen protection for victims of this behaviour.     

Does this mean that people are currently avoiding prosecution for the current exposure offence? 

As a matter of law, where a person exposes their genitals to another with the intent to humiliate, or for the purpose of obtaining sexual gratification, and do not also have an intent to cause alarm or distress, this is not currently captured by section 66 of the 2003 Act.   The Crown Prosecution Service have confirmed that they are not aware of any cases that have not been charged or have not resulted in a conviction, because the defendant successfully argued they acted purely with the intent to humiliate, or for the purpose of obtaining sexual gratification, but without any intent to alarm or distress. As well as this, any potential ‘gap’ in the current legislation is addressed by the common law offence of outraging public decency.  However, as a matter of policy, the government considers that it would be preferable to amend the offence at section 66 of the 2003 Act so that the mental elements are aligned with those of the offence at section 66A. The government think this is justifiable because it would make the law more consistent and strengthen protection for victims. 

Sexual activity in the presence of child or adult with mental disorder  

What are the existing offences in the Sexual Offences Act 2003 this will impact?   

The 2003 Act includes a number of offences which capture where a person engages in sexual activity in the presence of a child (sections 11 and 18) or a person with a mental disorder (sections 32, 36 and 40) in certain circumstances. The current offences require a person (A) to engage in sexual activity in the presence of a child/person with a mental disorder (B) (or in a place from which B can observe A), for the purpose of obtaining sexual gratification, and also require that A knows or believes that B is aware of the activity, or A intends B to be aware of it.   

What are the proposed changes?   

The government wants the law to capture cases of engaging in sexual activity in the presence of a child or person with mental disorder, where the defendant acts in order to obtain sexual gratification from the mere presence or observation of the person, regardless of whether or not A knew or believed that B was aware or intended B to be aware.    

How can we guarantee you will not over criminalise parents who share a bedroom with young children?   

The government do not want to criminalise those who engage in sexual activity in the presence of a child, who do not do so for the purposes of obtaining sexual gratification from the child’s presence e.g. parents sharing a bedroom with a young baby. In those circumstances the presence of the child is incidental, and we are therefore retaining the requirement for the activity to occur in the child or person with a mental disorder’s presence for the purpose of obtaining sexual gratification in order to exclude non-malicious behaviour from being captured within the offences.   

Child abduction 

Why is the government planning to criminalise parents who detain their child abroad? 

The government does not intend to criminalise parents who take a child abroad where they have consent to do so and return the child to UK at the end of the agreed period.   

Our intention is to make it a criminal offence where a parent or person with similar responsibility for a child, detains that child abroad after the consent to the original taking has expired - sometimes detaining the child indefinitely.   

Disputes involving children detained abroad without appropriate consent are usually resolved through civil dispute and family custody processes. However, we consider that the possibility of criminal proceedings could add to a suite of measures which deter parents from detaining a child abroad without the appropriate consent.   

Evidence suggests that there is an increasing trend away from a parent taking a child abroad without consent, to detention of a child abroad without consent (i.e. taking a child with consent but detaining a child beyond the permitted period).  It has also been suggested that some parents see this as an easier route to permanently keeping their child with no criminal charges or police involvement. Such parents are therefore using this method to circumvent the law. 

An offence that criminalises the detention of a child outside the UK without the appropriate consent could therefore be advantageous to abducted children and left-behind parents.  

Why has it taken so long to bring this legislative proposal forward when it was first proposed by the Law Commission in 2014. 

Successive governments have decided not to pursue the Law Commission’s recommendation. The government are conscious, however, that there is a gap in the law and that gap should be closed. 

The government are aware of growing evidence that children are being detained abroad by a parent or person with similar responsibility without the appropriate consent, sometimes indefinitely.  Although there are routes to resolution through the civil and family courts, introducing this new offence may help deter parents from detaining a child abroad as they could face extradition to the UK and a criminal sanction.  

Polygraph testing of serious sexual offenders 

Can offenders be recalled to custody for failing a polygraph test? 

Offenders on licence subject to a polygraph testing licence condition cannot be recalled to custody solely on the basis of giving a significant response. However, they can be recalled for making disclosures during the test that reveal they have breached other licence conditions or suggest that their risk has escalated to a level whereby they can no longer be safely managed in the community.  

When a significant response is indicated, the offender will likely be required to undertake a further polygraph test more quickly, and they may have additional conditions added to their licence.  

Information gathered from a polygraph test will likely be shared with the police who are able to conduct further investigations that may or may not result in charges being made. 

Individuals who attempt to ‘trick’ the polygraph test, or who refuse to take it, can be recalled to custody. 

Are polygraph test outcomes accurate? 

Polygraph tests work by measuring the physiological changes in the body when the individual being tested is asked certain questions.  

The polygraph instruments measure changes in blood pressure, blood flow, respiration rate and sweat responses. Any changes to the individual’s normal rates can indicate that they are attempting to be deceptive.  

A comprehensive review published by the American Polygraph Association indicated that polygraph testing is a highly accurate tool that can indicate deception in 80-90% of cases (Nelson et al., 2011).