When Misconduct in Public Office is Really a Sexual Offence

Misconduct in Public Office (MiPO) covers a wide and varied range of conduct. Beyond the defendant’s public office, there is no unifying conduct or result. A conviction for MiPO could represent putting pressure on a council official to move the route of a proposed road, or a police officer abusing his/her position for sexual gain. Sexual misconduct prosecuted as MiPO falls outside the usual regime for prosecuting and sentencing sexual offences, both obscuring the conduct by the label of MiPO and avoiding sexual offence specific consequences. To examine what kind of sexual offending MiPO has been covering, we analysed newspaper reports and appellate decisions since 2002. This enabled us to identify the conduct MiPO was being used to cover at charge, plea and conviction (or acquittal) stages. We found a significant amount of sexual misconduct being prosecuted as MiPO. We then analysed the sexual conduct to determine the “wrongs” involved, identifying particular categories. This enabled us to propose a new sexual offence (based on the Sexual Offences Act 2003 offences that are not founded on lack of consent), which marks the sexual wrong and enables a focus on the defendant’s abuse of position rather than the victim’s vulnerability. This article outlines the basis for our proposal to the Law Commission for reform of the common law offence of MiPO (as our second response to their consultations). Currently at the stage of Policy Development, the Commission aims to publish its report later this year.