Criminal conduct often involves the exploitation of trust. But while many criminal offences involve a breach of trust, “abuse of position of trust” has a specific meaning in relation to sexual offences which may not be widely understood.

An abuse of position of trust offence involves an adult in a position of trust over someone aged under 18 engaging in sexual activity with that person.

Unlike some other sexual offences, abuse of position of trust sexual offences can involve victims aged above the legal age of consent. As a result, people can be criminally prosecuted for being in a mutually consensual sexual relationship with someone aged 16 or 17.

Here, Hickman & Rose’s Sorcha Miller explains the criminal law of abuse of trust as it relates to alleged victims aged 16 and 17 and sets out some of the issues to be considered when defending these allegations.

What is an abuse of position of trust sexual offence?

Abuse of position of trust sexual offences are set out in sections 16 to 24 of the Sexual Offences Act 2003.

This Act makes it unlawful for an adult in a “position of trust” to have consensual sexual activity with a young person to whom they were in that position of “trust”.

The 2003 Act defined positions of trust as being institution-based roles in which adults were paid to care for under 18s. These included: 

• Teachers and education staff
• Care workers
• Healthcare professionals
• Youth justice and detention staff
• Local Authority roles

Following the Act’s passage into law, concerns were raised that these positions of trust had been defined too narrowly. A subsequent Government review identified more situations in which 16 and 17-year-olds may be dependent on an adult, and therefore vulnerable.

The Police, Crime and Sentencing Act 2022 updated the list of roles which may constitute a position of trust to include people who coach, teach, train, supervise or instruct a young person in a sport or a religion on a regular basis (and know that they do so). This therefore includes:

• Sports coaches
• Religious leaders, instructors and youth group leaders
• Volunteers in these areas.

Despite this expansion, there are still gaps in the legislation. It currently does not, for example, cover driving instructors, private tutors, and some youth workers in non-religious community settings.

What does the prosecution need to prove in an abuse of trust case?

To prove an abuse of trust sexual offence, the prosecution needs to be able to convince the court beyond reasonable doubt that:

1. Sexual activity took place
2. The adult knows the young person is aged 16 or 17
3. The adult is involved with the younger person in either coaching, teaching, training or supervising in either sport or religion on a regular basis.
4. The adult knows that they are involved in coaching etc in sport or religion

“Sport” is defined as games in which physical skill is the predominant factor and those which are engaged in it for the purpose of competition or display.

“Religion” is defined to capture those involved in a religion that holds a belief in one of more gods, and those involved in a religion that do not hold a belief in a god.

A criminal prosecution for abuse of trust will fail if any one of these four criteria is not made out. Indeed, many prosecutions have failed after the defence have shown that one or more elements of the above are not proven.

It is, for example, insufficient for the prosecution to show that an accused person had a sexual encounter with a 16-year-old whom they coached in a sport, but not to show that the accused regularly coached that 16-year-old. Irregular coaching for one or two sessions would not be sufficient.

The major differences between abuse of trust cases and most other sexual offences are that the nature of the sexual activity is not particularised, and that a lack of consent is not required.

Other sexual offences such as rape or or sexual assault require that the victim did not consent to sex, or that they were aged under 16. Abuse of trust offences are different. What makes the sexual activity unlawful in an abuse of trust case is the position of trust.

How do the police investigate abuse of trust sexual offences?

Police investigations into allegations of abuse of position of trust in sexual offences are rarely straightforward.  

The police will firstly need to establish that sexual activity took place. Sexual activity has a broad definition from touching to penetrative sex. The alleged victim in a case may have powerful feelings for the adult and, as such, may not want to cooperate with the police investigation, nor provide evidence that sexual activity took place.

Having established that sexual activity took place, the police need to establish if this activity was consensual and, if so, whether the young person had capacity to consent. If the sexual activity was deemed to be non-consensual, this could be prosecuted as a sexual offence without requiring a position of trust, for which the penalty on conviction would be more severe.

If the sexual activity was consensual and there are no issues of capacity, the police will examine if the accused person’s position of trust falls within the statutory definition.

It can often be the case that roles which are initially assumed to be positions of trust may not, on full examination, fit the criteria.

The job of a private tutor, for example, is not contained within the Act’s prescribed list, nor does it involve coaching, teaching, training, supervising or instructing a young person in a sport or religion. Similarly, given the definition of sport set out in the law, it is hard to see how being a chess instructor at an informal chess club constitutes a position of trust.

Common issues in abuse of position of trust cases

The central issue in many abuse of position of trust cases is establishing whether the person being accused of criminality held a position of trust over the alleged victim

Establishing this is often not as straightforward as one might expect, even for individuals whose professional roles seem, at first glance, to fall squarely within the role descriptions outlined above.

In a hypothetical example: consider the case of an adult who volunteers, part time, at a local children’s football club, where they help run the club café? Is this a “position of trust” over the young club members?

To answer this we need to ask whether this person’s role involves coaching, teaching, training, supervising or instructing a young person in sport or a religion. On the face of it, it would seem not. 

But what if the person in question enjoyed kicking a ball around with the young footballers, and did so, semi-regularly, before and after the Saturday morning matches? This may be more likely to be covered by the definition of position of trust.

We can see that a position of trust can often be a nuanced position.

The timing of the relationship under examination can also prove crucial in these cases. For the offence to be made out, sexual activity must have taken place whilst the adult was in a position of trust.

If the sexual activity occurred when the adult was no longer in the role where the young person had some dependency on them, the prosecution will fail.

Penalties in abuse of position of trust prosecutions

Abuse of position of trust offences are serious criminal offences for which anyone found guilty faces a maximum sentence of five years’ imprisonment.

As well as a potential custodial sentence, a conviction will also typically result in being placed on the Sex Offenders Register and the possibility of being prohibited from working with children or vulnerable individuals.

While the above sanctions may be imposed on someone found guilty, there may be serious consequences even in cases where the allegations are found to be unmerited.

Mounting an effective defence against an allegation of an abuse of position of trust offence can take time and effort. It can also be deeply disturbing.

Furthermore, in most situations the accused person will be prevented from continuing in their role while the police investigation proceeds. The fact that investigations usually last many months – and often endure over years – means being accused can have a serious impact.

In many of these cases, a parallel investigation by a professional body is likely if the individual is regulated. This too will require attention.

What to do if accused of an abuse of position of trust offence

Being accused of an abuse of position of trust sexual offence is serious, and potentially life changing. Here are four precepts anyone who finds themselves in this situation should consider:

1. Take it seriously. These allegations can, if proven, result in serious criminal penalties. The consequences of getting the early stages wrong can be severe.
2. Make no contact with the complainant. However well-intentioned, any such contact can be interpreted as an attempt to interfere with an investigation and may, in some circumstances, constitute an offence in its own right.
3. Understand that investigations can run in parallel. An employer, club, governing body or religious institution may investigate at the same time as the police. Information can (and often does) flow between them.
4. Know you have a right to a solicitor. Anyone who is arrested for an offence of this nature, or invited for a voluntary interview with police, is entitled to legal advice.