England: ‘Pedantic drafting’ of sex offences law prompts legislation on sports coaches

Legislation to criminalise sex between sports coaches and under-18s in their care is only necessary because of the “pedantic drafting” of the Sexual Offences Act 2003, an expert has said.

The UK government yesterday announced plans for new legislation in the wake of high-profile abuse and welfare scandals across British sports.

However, Professor Clare McGlynn of Durham Law School (pictured), who specialises in violence against women, told Scottish Legal News the need for legislation could have been avoided if the government took a different approach to sexual offences legislation.

Professor McGlynn said: “The current law in England and Wales criminalises sexual activity between 16-17-year-olds and those in a position of trust in relation to the young person.

“Unfortunately, the provisions are so tightly drafted that only certain people in ‘positions of trust’ are covered, for example teachers.

“This means that the sports coach of a 16/17 year old is not assumed to be in a position of trust and is not, therefore, covered by this specific element of the current law. The law does, of course, cover non-consensual sexual activity, such as rape and sexual assault.”

She continued: “The problem here is the pedantic drafting of the provisions in which attempts to cover all the circumstances in which the law should apply. But almost inevitably, this means that some cases are excluded, as with sports coaches. If the law were more broadly drafted, such as applying to anyone in a ‘position of trust’ over a young person, sports coaches would be covered.”

Professor McGlynn said the same problem existed in other areas of sexual offences, pointing out that revenge porn legislation in England and Wales “was so specifically drafted that it fails to cover many examples of the non-consensual sharing of intimate images, such as upskirting and sharing images for financial gain or for ‘a laugh’”.

The equivalent law in Scotland covers both of the latter examples.

She concluded: “In essence, in an area of sexual offending where the harms are so significant, we should be taking an approach which ensures that harmful sexual activity is proscribed.

“The law needs to be ‘future-proofed’ so that when new circumstances arise, the law is fit for purpose. This requires an approach to legislative drafting which gives primacy to the aims and purposes of the law, rather than seeking to minutely define the scenarios where the law applies.”