Reducing the Risk of Sexual Harm: Episode 2 – The Law

In this podcast, the second in a series of six, we are looking at what education leaders should understand about the legal context around criminal offences and sexual harm as defined by the Sexual Offences Act 2003 and other pieces of legislation.  We also discuss consent and capacity and the legal status of sexual harassment and bullying and peer on peer abuse. 

Attitudes towards some aspects of sexually harmful behaviour have hardened considerably in the last twenty years. The Harvey Weinstein trial in the US led to the MeToo movement, highlighting and rejecting common abusive behaviours which had long been seen as regrettable but normalised. More recently, the ‘Everyone’s Invited’ initiative uncovered an apparently endemic level of sexually harmful behaviour throughout education at every level, to which the Government responded by asking Ofsted to do a review of sexual harm prevention and safeguarding in schools.  Alongside the Ofsted review the statutory guidance ‘Keeping Children Safe in Education’ was updated in September 2021 to make clearer the duties providers have to prevent and act on peer-on-peer abuse.  The inspection regime for education including FE now encompasses more detailed expectations on providers to mitigate the risks of sexual harm occurring on their watch. 

In this series we talk a lot about sexual harm.  In its widest sense that may mean any sexual activity that a person doesn’t consent to, can’t consent to, does not want or does not have the full capacity to consent to at that time. It also includes the emotional and physical harm that may be experienced as the consequence of having experienced one or more sexual offences. This means that sexual harm may have occurred despite the fact that there may not currently be a criminal offence that covers the specific act.

The main piece of legislation that covers most criminal sexual offences is the Sexual Offences Act 2003 in England and Wales and Scotland and Northern Ireland have pretty similar legislation. There are a significant number of offences to protect people in many different circumstances.

Some sexual offences occur without any contact with another person such as voyeurism or distributing or viewing indecent images but most involve varying forms of direct contact with another person.  Offences under the Sexual Offences Act range from sexual touching that was not consented to through to offences such as rape or sexual assault by penetration.   Of course, a key issue with all sexual offences is consent and whether a person at that time and in those circumstances had the capacity to truly consent to what was happening to them.

It is important for education leaders to be familiar with the law surrounding sexual activity and children and young people.  Although FE leaders are less likely than school leaders to be working with many under-16s they are very likely to have many over-16 learners with vulnerabilities who could be seen as lacking the ability fully to consent to sexual activity and are particularly likely to be victims of sexual bullying and harassment by fellow learners or by adults in a position of power or trust.  In some circumstances, sexual activity that would not normally be considered an offence becomes one when the young person is considered particularly vulnerable to an adult’s sexual advances.

The sharing of intimate images is extremely widespread  and most of us are unclear as to when that can become illegal.  It is not uncommon for a young person to end up with a criminal record for having shared pictures.  Although it may seem a dry subject, it could be worth considering who in your organisation should become familiar with the legislation around the sharing of images and indeed whether your learners might benefit from an understanding of the possible severe consequences of doing something they might consider to be a bit of a laugh.  

Sexual harassment and sexualised bullying can take the form of words, taunts and bullying in groups and this can feel very real, terrifying, intimidating and degrading for the recipient of the behaviours, even where the behaviour has not reached the threshold for criminal liability.  Often it can develop within a group scenario against an individual or another group that are perceived as vulnerable or in some way weaker and can very quickly escalate into sexual assaults. 

Peer on peer abuse can be as harmful to the mental wellbeing of a survivor as abuse by an adult and at the very least, it is hard to believe that young people will be able to learn and thrive if they are being subjected to a form of bullying and harassment which can follow them home and into their bedrooms with the help of technology. 

Unfortunately, if you don’t think it is happening within your learner population then perhaps you might want to review your reporting processes.

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Reducing the Risk of Sexual Harm

This brand new series of podcasts, by TDI, will be published on FE News every Thursday. Find each episode on FE News!

Find the series rundown below:

Episode 1 – The Big Picture – 15th June

Episode 2 – The Law – 22nd June

Episode 3 – Compliance – 29th June

Episode 4 – The Challenge of Technology – 6th July

Episode 5 – Accountability – 13th July

Episode 6 – Creating A Safer Community – 20th July