4A.—(1) Section 4 of this Act shall have effect in the case of a marital rape offence with the following modifications.
(2) The prohibition in subsection (1) of the publication or other disclosure (except as authorised by a direction) of—
shall apply in relation to the person against whom the allegation or accusation of the rape offence is made ('the man') as it applies to the woman, but shall continue in force for the duration of the woman's life only.
(3) Any direction in pursuance of that section may disapply the prohibition either in relation to the man and the woman or in relation to the man only (but not in relation to the woman only) and, where given in pursuance of an application, whether or not the application sought that form of direction.
(4) Subject to subsection (5) below, the defence conferred by subsection (5A) on proof of the written consent of the woman to the appearance of matter of the description in question shall only be available on proof of the written consent of the woman and the man; and the exception in subsection (5B) on proof of unreasonable interference with the woman's peace or comfort applies also on proof of unreasonable interference with the man's peace or comfort.
(5) Where the man is convicted of the rape offence subsection (4) above does not apply as respects any time after the conviction.
(7) In section 7(2) (Definition of rape offence, etc, for purposes [...]f the Act), in that definition—
(8) In section 7(2), after the definition of "a rape offence" there shall be inserted the following—
'a marital rape offence' means any of the following, namely, rape, attempted rape, assault with intent to rape and burglary with intent to rape where, at the time of the alleged offence, the victim and the person accused of the offence are married to each other;".
(9) In consequence of the foregoing amendments—
(a) in section 5 of the Sexual Offences (Amendment) Act 1976—
(b) in section 6(5) of the Magistrates' Courts Act 1980 for the words from "section" to the end there shall be substituted the words "sections 4 and 4A of the Sexual
Offences (Amendment) Act 1976 (Anonymity in rape cases of complainant and, in marital rape cases, of complainant and defendant)"; and
(c) paragraph 66 of Schedule 15 to the Criminal Justice Act 1988 shall cease to have effect.
(10) In section 80(3) of the Police and Criminal Evidence Act 1984 (Exceptional compellability of accused's spouse) after paragraph (a), there shall be inserted the following paragraph—
(aa) the offence charged is a sexual offence against the wife of the accused; or
(a) in consequence of the amendment made by subsection (1) above in subsection (3) of that section—
§ (11) Subject to subsection (12) below subsections (4) to (8) above shall not apply in relation to an allegation or accusation of an offence which is made before the commencement of this Act and subsection (10) above shall not apply in relation to any trial, or any proceedings before a magistrates' court as examining justices, which began before the commencement of this Act.
§ (12) Subsection (7) above shall not, in its application to sections 1(2), 2 and 3 of the Act of 1976, apply in relation to any trial, or any proceedings before a magistrates' court, which began before the commencement of this Act and shall not, in its application to sections 4 and 5 of the Act of 1976, apply in relation to an allegation or accusation of an offence which is made before the commencement of this Act.'.
New clause 83—Aggravated sexual offences—
'.—(1) A person who commits an offence under section 1(1) of the Sexual Offence Act 1985 or section 22(1) or 30(1) of the Sexual Offences Act 1956 shall be guilty of an aggravated offence if the person against whom that offence is committed is under the age of 16 years.
(2) A person who commits an aggravated offence under subsection (1) of this section shall be liable to double the penalty provided for such an offence if it had not been an aggravated offence.'.
New clause 84—Living on the earnings of prostitution of a person—
'In section 30 of the Sexual Offences Act 1956 for subsection (1) there is substituted the following subsection—
(1) It is an offence for a person knowingly to live wholly or in part on the earnings of prostitution".'.
New clause 85—Procuration of a person to become a prostitute abroad—
For section 22(1) of the Sexual Offences Act 1956 there is substituted the following section—
(1) It is an offence for a person—
New clause 93—Meaning of rape—
'.—(1) In section 1(1)(a) of the Sexual Offences (Amendment) Act 1976 ("the 1976 Act")—
(2) In section I(1)(b) of the 1976 Act—
the words "that person" are substituted for the word "she" in both places where it occurs; and
(3) The following subsection is inserted after section 1(1)—" Notwithstanding section 44 of the Sexual Offences Act 1956, for the purposes of this Act, 'sexual intercourse' shall mean vaginal or anal penetration to any degree by any part of the assailant's body, or any object, and shall include non-consensual oral sex.".'.
§ Government amendments Nos. 43, 44 and amendments Nos. 49 to 51.
§ Mrs. Roche
This new clause is about equality and treating victims of crime equally. The maximum penalty for raping a woman is life imprisonment. Given the appalling nature of that crime and the trauma that it causes women, no one would argue that that is wrong. Yet male rape is not recognised in law. It is called buggery without consent, and carries a maximum penalty of only 10 years' imprisonment. If we want to act properly for victims of crime, we should do something about that legislative discrepancy.
Other countries, such as Canada and Ireland, have already amended their legislation. In Ireland, the Criminal Law (Rape) (Amendment) Act 1990 extended the definition of rape to include male victims.
In this country, the Criminal Law Revision Committee recommended as long ago as 1984 that the penalty for buggery without consent should be increased to life imprisonment. New clause 71 would achieve the same end as the CLRC hoped to achieve—but by changing the definition of rape rather than increasing the penalty for buggery. After all, men who are victims of rape know that that is exactly what they are—rape victims, and the victims of an appalling crime.
A change in the law would also reassure male rape victims that their plight is taken seriously. A breakdown of 62 men who were the victims of sexual abuse and who have attended the Wharfside clinic at St Mary's hospital in Paddington so far in 1994 showed that only seven of them —11 per cent.—had reported their assault to the police. A change in the law might encourage more men to report such crimes, so that the police can thoroughly investigate them.
The new clause will enable the law to take account of the needs of victims of crime, and I shall listen carefully to the Minister's remarks. I commend the new clause to the House.
§ Mr. Maclean
In law, sexual assault—by whatever name it is called—is abhorrent. The fact that the word "rape" is reserved for a particular act should not belittle the suffering of the victims of other sexual offences, whether male or female.
New clauses 71 and 93 would raise the maximum penalty for certain sexual offences to life imprisonment. Because the penalty for indecent assault on a woman was increased from two to 10 years in 1985 and because we have now extended the power of the Attorney-General to refer unduly lenient sentences on indecent assault, I do not believe that, in the overwhelming majority of cases, there will be any difficulty in ensuring that offenders are properly punished. The same goes for non-consensual buggery of a man.
In short, the subject of new clauses 71 and 93 is too big and sensitive to embark on during the Report stage of a Bill which, as my right hon. and learned Friend the Home Secretary pointed out during the debate on the age of consent, is not a sexual offences Bill, but a criminal justice Bill.
I accept that there is an anomaly in the maximum sentences that are available. If there were to be a future sexual offences Bill, where these and other matters could be carefully considered—there would be knock-on 176 consequences if we were to do what the hon. Lady suggested, for example, on the problem of attempted buggery—the Government would be sympathetic in looking to iron out those anomalies and may increase the penalties.
I have listened carefully to what the hon. Lady has said, but this Bill is not the vehicle in which to attempt to change such a large subject. With those assurances, I hope that the hon. Lady will not press her new clause tonight.
§ Mr. Gerrard
New clause 78, which is grouped with new clause 71, stands in the name of my hon. Friend the Member for Leyton (Mr. Cohen) and myself and deals with a simple issue. The purpose of the new clause is to bring into the law the offence of marital rape. It might be thought that that is not necessary in view of the ruling of October 1991 in another place that sex without a woman's consent is rape irrespective of the relationship between the attacker and the woman. I point out that, in January 1992, the Law Commission, as a main recommendation, said that legislation should confirm the law and that the husband who raped his wife could be prosecuted just like anyone else. Although it could be argued that the law is now clear as a result of the 1991 judgment, the Law Commission clearly believed that a change was needed to remove any element that could suggest a marital exemption.
The Government have stated a commitment to tackling the issue. I shall quote briefly from a letter from the Minister to my hon. Friend the Member for Leyton on precisely this issue. It reads:
We welcomed the … ruling in 1991 on rape in marriage. It is right that a woman should not be denied the protection of the criminal law simply because she is married to the assailant. The Government has pledged to enshrine the rape in marriage recommendation in statute when a convenient opportunity arises".I believe that this is a convenient opportunity. I hope that the Minister will not repeat the argument that he has just used in response to my hon. Friend the Member for Hornsey and Wood Green (Mrs. Roche). The Bill covers a huge range of topics. If the Government wish to make changes in the law in that respect, it is not satisfactory to say that we must wait for another Bill. The Bill is here now. It is wide enough already. These changes, which the Government said that they accept, could be included. I hope that the Minister will think again and, at the very least, say that if he cannot agree to the new clauses tonight, he will consider what can be done when the Bill goes to another place.
§ Mr. Alan Howarth
I am disappointed at the response of my hon. Friend the Minister on new clause 71. It deals with an anomaly and an injustice which enable an odious crime to persist all too readily and which means that, if offenders are caught and found guilty, they are punished too lightly.
As the hon. Member for Hornsey and Wood Green (Mrs. Roche) said, there is currently no such offence as male rape, or the rape of males. The charge in such cases is buggery without consent or indecent assault. Buggery without consent carries a maximum penalty of only 10 years compared with a maximum penalty of life imprisonment for the rape of a woman.
Why is this important? Why is new clause 71 needed? It is needed because the present situation is plainly inequitable. By attaching a smaller maximum penalty to buggery without consent, we imply that, even if we do not condone it, we take a more indulgent view of it. All the 177 evidence shows that male victims of rape experience a trauma that should be understood as comparable to that suffered by female victims. In both cases, the suffering can be expected to be terrible and long lasting. That is certainly what the Royal College of Nursing tells us and what any of us can readily imagine.
Writing in the British Medical Journal of 15 December 1990, Dr. Michael King said:The rape trauma syndrome, in which phobic anxiety, depression, somatic complaints, and behavioural changes. follow from am assault, occurs in both men and women".Because male rape is not recognised as a crime, it is often not reported, or, if it is, is reported only a long time after the event. That means that the victim does not receive support and care. The Kafkaesque effect of the offence not being recognised is that the victim, as one victim put it, feels isolated, unrecognised by society and without a context in which to understand his experience.
Suzanne Adler's research shows that the reasons for not reporting male rape are similar to those for not reporting female rape. They include shock, embarrassment, fear, blame and a high degree of stigma. The establishment of a crime of male rape, as proposed in new clause 71, would make it more likely that the needs of male victims of sexual assault would be constructively considered through the provision of counselling and other support.
In today's climate of greater openness and willingness to discuss matters such as rape and child abuse, the dimensions of the problem of male rape, while remaining far from clear, are becoming more apparent. Reports to the police of crimes of buggery without consent and indecent assault rose sharply between 1984 and 1989. Offences of buggery are recorded as increasing by 90 per cent. in that period and offences of indecent assault by 24 per cent. Dr. Gillian Mezey of St. George's hospital in London believes, however, that the figures arethe tip of an iceberg".By 1992, the admirable charity Survivors, to which the hon. Member for Hornsey and Wood Green referred, was receiving 800 calls a year during its twice-weekly two-hour helpline.
Let us be clear about the fact that male rape is not, as public prejudice may suppose, typically a feature of [...]omosexual activity. First, Home Office figures show that 85 per cent. of victims of indecent assault were under 15 years of age. Secondly, research published in 1990 in the British Journal of General Practice found that in 72 per cent. of the cases studied the assailant was perceived as having a heterosexual orientation. As in 72 per cent. of cases the assailant was also personally known to the victim, there is no reason not to accept that the estimate is fairly accurate.
The point is that male and female rape is not primarily about sex but about power and its abuse. Rape is violence in which sex is the weapon. Mr. Ernest Woollett of Survivors, who was cited by the hon. Member for Hornsey and Wood Green, reports that of those calling the helpline in 1993—the hon. Lady dealt with the 1994 statistics—44 per cent. had been under 10 at the time of the first assault and a further 22 per cent. were aged 11 to 15. Thirty per cent. of the alleged abusers were members of the victim's family and 13 per cent. of abusers were women. Where the information was obtained, in 45 per cent. of cases the sexual orientation of the victim was heterosexual and in 47 per cent. gay.
178 We are talking about an evil and an injustice on which we should act. We would not be alone in doing so: in Germany, the Netherlands and Canada, as well as in the majority of the states in the United States of America, rape is a non gender-specific offence. Expert legal opinion in Britain favours reform in this sphere, as the hon. Member for Homsey and Wood Green said. In 1984—
§ Mr. Howarth
I am grateful that the hon. Gentleman makes that point because it is very much the one to which I was coming. First, I wanted to stress that expert legal opinion favours reform in the area. In 1984, the Criminal Law Revision Committee recommended increasing the penalty for buggery without consent. In 1992, in Doncaster Crown court, Mr. Justice Crabtree said:
When it comes to punishment I do not see that it makes any difference whether it was a man or a woman who has been violated and degraded.It will not do for us simply to wait for some putative sexual offences Bill which may receive parliamentary time at some uncertain and possibly distant date. We are dealing with a crime and with suffering of which there is evidence that the incidence is mounting. The new clause provides a vehicle which would enable us to act to address the problem. I am sorry that my hon. Friend the Minister has felt unable to offer any hope that in the later stages of the passage of the Bill the Government will look again constructively at the problem, but I hope that he may reconsider the position at this inconvenient hour. I hope that, after all, the Government will be prepared to bring forward a new clause of their own in another place to address an urgent and important evil.
§ Ms Mildred Gordon (Bow and Poplar)
The Minister has said that the Criminal Justice and Public Order Bill is not the place to accept new clauses on sexual offences. On the contrary, I believe that it is a good opportunity to amend the law. New clause 93 concerns the definition of rape. Until now, legislation has excluded many horrific assaults which are technically not rape, but which are experienced as rape by the victims. The Sexual Offences (Amendment) Act 1976 defines in statute the offence of rape as unlawful sexual intercourse with a woman who did not consent.
The first point of new clause 93 is about rape in marriage, where legislation is long overdue. Secondly, it would extend the definition of rape to cover rape attacks on men and boys and, thirdly, it includes as rape non-consensual buggery and some of the offences which are now known as indecent assault which carry a lesser penalty.
The effect of the word "unlawful" in the Sexual Offences (Amendment) Act was to make husbands immune from the charge of raping their wives. The implication of it was that some rape, such as that within marriage, was lawful and many husbands took that right. Even those who did not take that right knew that they had it. 179 As my hon. Friend the Member for Walthamstow (Mr. Gerrard) said, in March 1991, after years of protest by women and women's organisations, the Appeal Court declared:a rapist remains a rapist subject to the criminal law irrespective of any relationshipIn 1991, the Law Lords said:in modern times the supposed marital exception in rape forms no part of the law of England.That decision is being appealed against in the European Court and therefore it is vital that Parliament, which has never taken a stand in supporting the right of wives to say no to their husbands, takes a stand now.
Parliament has done nothing, despite the fact that a Women Against Rape survey showed that rape in marriage is the most common rape of all and that one in seven married women have been raped by their husbands. In considering what the Law Lords have done, the Law Commission has said that rape in marriage should be made a crime on exactly the same basis as any other rape and that that should be achieved by deleting from the 1976 Act the word "unlawful". By adopting new clause 93, I believe that Parliament should delete that word today.
On the basis of my case work, I feel strongly that Parliament should ensure that immigrant wives are no longer forced to submit to rape as a condition of their right to stay in Britain. I have known of several women who have fled brutal rapist husbands and then been faced with deportation orders because they were no longer living with the rapist. That must be put right. Women should be given legal help to fight their cases and financial help to enable them to escape from rapist husbands.
As it is so late in the day I shall try to be as brief as possible. But I must say that it is absurd that in 1994 British law still does not recognise the rape of men and boys. It is clear that the distinction between buggery that is really consensual anal sex and buggery that is really rape must be clarified in law. That legal distinction is long overdue, both for women and for men. Consensual sex of whatever nature is not the business of the law, but it is the law's job to protect women, men and children from anal rape.
Men and boys, like women and girls, are raped by strangers, by members of their families, by their partners in gay relationships, by casual acquaintances or dates, and, especially when they are young, by men in positions of power and authority over them. Male rape is especially common in prison. It is time that the law addressed that problem, which could easily be done by changing the word in the Sexual Offences (Amendment) Act from "she" to "person".
My last argument is that the law must cover other forms of rape. The present definition of rape is confined to what is commonly known as "sexual intercourse". That definition artificially excludes many assaults that women experience and suffer as rape, such as forced oral or anal intercourse. Unfortunately, many children are sexually abused by means of forced oral intercourse.
180 Also excluded is the use of objects such as bottles, broom handles, knives and men's hands. There was a famous case involving a Queen's guardsman, Thomas Holdsworth, who was freed by the court on the grounds that a gaol sentence would ruin his Army career. In legal terms he had not raped the woman involved, although he had used his fist, full of rings, which tore her internally.
The distinction made by the law and by many men between penile penetration and other sexual assault has nothing to do with the trauma that women suffer, or with women's perceptions. As the law stands, extremely violent and serious assaults are categorised only as indecent assault, and thus receive a far lesser penalty. The maximum sentence for indecent assault is 10 years, whereas for rape the maximum is life. The new criminal compensation scheme gives compensation of £3,000 for indecent assault, but gives £7,500 for rape.
The present legal definition of the offence of rape is outdated and indefensible and creates gross miscarriages of justice. There can be no excuse for Parliament's perpetuating that situation for one more day.
§ Mrs. Roche
With the leave of the House, Mr. Deputy Speaker, may I welcome the contributions made by my hon. Friends the Members for Walthamstow (Mr. Gerrard) and for Bow and Poplar (Ms Gordon). I am pleased that the new clause has had all-party support and I congratulate the hon. Member for Stratford-on-Avon (Mr. Howarth) on his excellent speech highlighting rape trauma syndrome.
Although I welcome the Minister's expression of the Government's sympathy over the discrepancy, I am disappointed that in such a wide-ranging Bill time could not have been found to deal with that area of the law. I hope that as the Bill makes progress, perhaps in another place, it may be possible to give the issue further consideration and to deal with it. But in view of what the Minister has said, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.
§ Further consideration adjourned.—[Mr. Andrew Mitchell.]
§ Bill to be further considered this day.