§ The Minister of State, Home Office (Lord Falconer of Thoroton)
My Lords, I beg to move that this Bill be now read a second time.
Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. A responsibility rests on the Government adequately to protect everyone in society from such crimes, especially those who are most vulnerable to abuse: children and persons with a mental disorder or learning disability. We believe that the new framework of sexual offences, notification requirements and orders provided for in this Bill will give just such protection.
A responsibility also rests on the Government to ensure that the criminal justice system delivers justice. At the moment, only a fraction of sex offences recorded by the police end with a guilty conviction. Too often when the offence has been committed, the victim does not get justice. We are addressing this by improving the investigation of rape cases, enhancing the quality of case preparation and presentation at court and improving the treatment of victims and witnesses in cases involving allegations of rape and other sexual assault.
However the criminal law also plays a vital part. Our proposals in this Bill will provide a clearer legal framework for juries as they decide on the facts in each case.
The law on sexual offences, as it stands, is archaic, incoherent and discriminatory. Much of it is contained in an Act dating from 1956, and most of that was simply a consolidation of 19th century law. It reflects neither the changes in society and social attitudes which have occurred since then, nor our increased knowledge of the profound and long-lasting effects of sexual abuse. The Bill provides for new offences that set out clearly what is unacceptable sexual behaviour, together with appropriate penalties. Our proposals are the product of two major reviews, which both received extensive consultation.
Part 1 sets out a new framework of sexual offences. Part 2 deals with notification requirements and orders designed to prevent sex offending and other sexually harmful behaviour. Part 3 contains general provisions.
Clauses 1, 3, 5 and 7 provide for the non-consensual sex offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. They should be read together with Clauses 77 to 81.
772 Issues surrounding consent are central to establishing whether a sexual offence has taken place. It is therefore vital that the law is crystal clear about what consent means and what steps need to be taken to establish that it has been given in any particular case.
Under existing law, where a defendant is found to have an honest belief in the consent of the complainant, then even if such a belief is unreasonable, he must be found not guilty. We believe that that is wrong and must be corrected.
We will introduce into the law on consent a test of reasonableness. Where the prosecution can establish that sexual activity has taken place, that the other person did not consent to it and that a reasonable person would, in all the circumstances, have doubted whether the complainant consented, if the defendant did not act in a way that a reasonable person would consider sufficient to resolve that doubt, the offence will be made out. All this will be for the prosecution to prove. The defendant remains innocent until proved guilty beyond reasonable doubt.
We also believe that the law should set out a list of circumstances in which various presumptions will be made as to the complainant's consent and the defendant's belief in consent. This is done in Clause 78. These are circumstances in which it is most unlikely that consent was freely given, such as where the complainant was unconscious or asleep. Should the prosecution prove that sexual activity took place in one of these circumstances and that the defendant knew that the circumstances existed, there will be a presumption that the complainant did not consent, and that the defendant did not believe that the other party consented to the sexual activity. Both of these presumptions may be rebutted by the defendant.
We have had several useful discussions about this proposal with the noble Lord, Lord Thomas of Gresford, and others. They have raised particular points about the workability of the clause. I do not in any way suggest that that is the only point that the noble Lord, Lord Thomas of Gresford, has raised, but we have had particularly useful discussions with him on that. I assure your Lordships that we will very carefully consider all the points that have been made about the workability of that clause. That does not mean that we will not think about other issues as well, but it is worth referring particularly to that point.
We propose a package of measures to give children the greatest possible protection under the law from sexual abuse. We believe there is an age below which there should be no question as to whether a child consented to sexual activity. We want to stop the traumatic practice of young children being cross-examined about whether they consented to sexual activity before a conviction can be secured. Clauses 2, 4, 6 and 8 provide for a number of offences specifically designed to protect children under 13. In these offences, proving that the act took place will be enough to convict the defendant. Clause 76 provides that if the elements of one of these offences are proved, the defendant can be convicted only of that offence. No alternative verdict 773 will be possible. Questions have been raised about whether our drafting has achieved that. We shall of course consider that issue.
Clauses 9 to 16 deal with the child sex offences that involve ostensibly consensual sexual activity with children aged 13 to 15. We have been very careful to ensure that the law covers all the sexual activity we want criminalised. We have, for example, plugged the loophole discovered last year where a man persuaded two children to strip naked in front of him without committing an offence. These offences will criminalise both direct physical sexual activity and activity where no contact is made, such as forcing a child to watch a sexual act. Where no physical contact takes place, the maximum penalty available will be 10 years' imprisonment. The most serious behaviour involving direct physical contact will carry a maximum penalty of 14 years' imprisonment.
The Internet has opened up new possibilities for children both for learning and leisure. However, we need to ensure that we tackle those who want to use it to take advantage of the innocence of children. Following the recommendations of the Task Force on Child Protection on the Internet, we are creating a new offence to tackle the grooming of children both on-and off-line. The offence of meeting a child following sexual grooming and so on in Clause 17 will catch adults who undertake a course of conduct with a child leading to a meeting where the adult intends to sexually abuse that child either at that meeting or on a subsequent occasion.
This offence is complemented by a new risk of sexual harm order, provided for in Clauses 110 to 115, which will be used to prevent harm to children from sexually explicit communication or conduct where the adult has already engaged in such behaviour towards a child. This order could be used, for example, to stop an adult sending a child adult pornography or indecent text messages by mobile phone.
Clauses 18 to 27 re-enact, amend and extend the offence of abuse of a position of trust. The clauses make it an offence for a person aged over 18 to involve a child under that age in sexual activity where he is in a specified position of trust in relation to that child, for example where an adult looks after a child in a children's home.
Most child abuse takes place in the home. The balance of power within the family, and the close and trusting relationships that exist, make children particularly vulnerable within its environment. We must do all we can to prevent children being abused by those who are supposed to love and care for them. The offence of sexual activity with a child family member dealt with in Clauses 28 to 32 recognises that the modern family unit is often complex. We have therefore defined family relationships to take into account situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or "common law" partnerships.
774 Children are not the only members of our society who are particularly vulnerable to sexual abuse. The sex offences review heard very disturbing evidence about the extent and nature of the sexual abuse of people with a mental disorder or learning disability. Existing legislation has offered inadequate redress when such people are sexually abused. It is essential the Bill remedies this, while recognising the rights of people with disabilities to a full life, including a sexual life. To this end we are creating three new categories of offences to protect people with a mental disorder or learning disability.
Clauses 33 to 51 create three new categories of offences to protect persons with a mental disorder or learning disability. The first prohibits involving a person in sexual activity where that person, by reason of mental disorder or learning disability, is unable to refuse. Someone is unable to refuse if he or she,lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason), or he is unable to communicate such a choice to A".The second category of offences criminalises involving a person with a mental disorder or learning disability in sexual activity by inducement, threat or deception. These offences recognise the fact that although such a person may be quite capable of giving his or her consent to sexual activity, he or she may none the less be vulnerable to relatively low levels of inducement, threat or deception.
The third category of offences of breach of a relationship of care criminalises those providing certain kinds of care who engage in ostensibly consensual sexual activity with those receiving it. This is necessary to protect a person with a mental disorder or learning disability who has the capacity to consent but may be particularly vulnerable to exploitative behaviour and thus may agree to sexual activity solely because they are influenced by their dependency on their carer.
I take this opportunity to acknowledge all the work that the noble Lord, Lord Rix, has done on behalf of people with a mental disorder or learning disability. The noble Lord, Lord Rix, put before this House last year a Bill to extend the protection offered by the law to vulnerable people. At the time I indicated that the Government intended to bring forward similar proposals as part of a wider package of reforms. I hope that the noble Lord, Lord Rix, feels that we have done his proposals justice. The House pays tribute to the extent to which the noble Lord has campaigned on these issues over the years.
The sexual exploitation of individuals is often organised for financial gain. Sexual exploitation in all its forms is despicable, but the commercial sexual exploitation of children is particularly abhorrent. This Bill brings more coherence and higher penalties to the criminal law surrounding prostitution, child pornography and trafficking. This is covered in Clauses 52 to 64. Paying for sexual intercourse with a child under 13 will carry a maximum penalty of life imprisonment; trafficking within the United Kingdom 775 will, for the first time, be made a specific offence; and offences relating to child pornography will be extended to protect children up to the age of 18.
Clauses 70 to 74 provide for a number of offences: indecent exposure, voyeurism, intercourse with an animal, sexual penetration of a corpse and sexual activity in public. When the Bill was published, there was some confusion about the last of these; namely, sexual activity in public. We shall therefore look at the drafting of this offence again during the Committee stage of the Bill to make sure we get it completely right. The offence will send out a strong signal of our intention to protect people from being the unwilling witnesses to overtly sexual behaviour in public that most people consider should take place in their own homes, while recognising that what consenting adults do away from the eyes of others is not a matter for the criminal law.
The sexual offences that I have outlined today are sensible, consistent and balanced. We have dragged the law on sexual offences into the 21st century, in a way which will treat everyone in society equally. The discriminatory offences of buggery and gross indecency, which criminalise consensual sexual activity in private between men that would not be illegal between heterosexuals or between women, will be repealed at last.
Having in place a framework of offences that protects the public and enables abusers to be properly punished is only half the story. Equally important is the management of sex offenders in the community. That is dealt with in Part 2 of the Bill. Clauses 82 to 94 re-enact with amendments Part I of the Sex Offenders Act 1997, which established the obligation on a sex offender to notify their name and address and any changes to those details with the police. That process is commonly known as registration. Having the information is invaluable to the police in two ways. First, it helps the police monitor sex offenders living in the community. Secondly, it helps in the detection of sexual crime, as the police will immediately know of the whereabouts of any number of potential suspects.
The most important changes to the notification requirements are: reducing the period within which a sex offender must notify the police of a change of details from 14 to three days; reducing the amount of time that a sex offender can spend at an address other than his home address before having to notify that address from 14 to seven days; making all those on the register confirm their details on an annual basis, as at present there is no requirement for them to do so; giving the police the power to check the fingerprints and take a photograph of a sex offender each time a notification is made, not just on his initial notification; and requiring sex offenders to provide their national insurance number when making a notification.
However, the current requirements apply only to those convicted of offences in the United Kingdom. It is important that we can keep track of all known sex offenders who are in this country, whether they have been convicted of an offence here or abroad. We are therefore introducing a new notification order to 776 make those convicted of sex offences abroad, whether they are British citizens or foreign nationals, subject to the same notification requirements if they come to the United Kingdom.
Additional protection will be offered by sexual offences prevention orders in Clauses 103 to 109, which combine existing sex offender orders and restraining orders, and will allow for whatever prohibitions on an offender are necessary to protect the public. For example, an offender could be prohibited from entering children's playgrounds or visiting swimming baths. Those orders will be available in respect of persons convicted of violent offences and who present a sexual risk, as well as those convicted of sexual offences. Breach of one of those orders will be punishable by a maximum penalty of five years imprisonment.
Protecting the public from sexual crime is a priority for the Government. We hope that the Bill demonstrates how committed we are to it. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
§ 11.23 a.m.
§ Baroness Noakes
My Lords, first, I should like to thank the Minister for the comprehensive way in which he has introduced the Bill. I am sure that I speak for all noble Lords when say that updating the law on sexual offences is a matter of the highest priority.
We on these Benches gave our broad support for the thrust of the Bill last November, when the Minister repeated a Statement made in another place. My noble friend Lady Anelay of St Johns said then,in general … it appears to have struck a sensible balance in dealing with questions that arc, by any standards, difficult".—[Official Report, 19/11/02; col. 288.]I reiterate that support, including support for the use of gender neutrality in the Bill, and pledge that the Opposition will work constructively to ensure that the Bill leaves this House for another place in the best possible shape.
Our only real regret is the length of time that it has taken for the Bill to reach this point. It was in January 1999, more than four years ago, that the then Home Secretary announced a wide-ranging review of the law relating to sex offences. The result of that review was Setting the Boundaries, issued in April 2000. So frustrated were the mental disability charities at the lack of action that the noble Lord, Lord Rix, was moved to introduce his own Sexual Offences (Amendment) Bill last autumn. I look forward to his speech later today. In the event, the Government finally produced their own proposals and, two weeks ago, published their Bill.
We must put that history behind us, because the important task before us is to debate the Bill and then to move efficiently through the important Committee and other stages in its passage. The Bill, while thoroughly laudable in its aims, raises important issues 777 of both principle and detail, which I know that noble Lords will want to address before we can pronounce ourselves content to send the Bill to another place.
The Bill is large, and covers so many aspects of sexual offending that I cannot possibly deal with them all. My noble friend Lord Astor of Hever will cover in particular the clauses that deal with mental disorder and learning disability. I simply say at this stage that I am glad that we are to drop the offensive and inaccurate term "defective" from our statutes. My noble friend Lady Blatch will be speaking about children and the abuse of trust provisions. Those are both areas in which many noble Lords have a deep and genuine interest.
I would like to cover four themes today: the effectiveness of the Bill, its internal consistency, whether too much is criminalised by the Bill and, last but not least, whether the Bill is validated by the views of the public. We will want to examine very carefully whether the changes to the law made by the Bill will be effective in two ways: first, whether it achieves desired outcomes and, secondly, whether it avoids undesirable outcomes.
Let me start with the definition of rape and the other major offences of assault by penetration and sexual assault. There are generally agreed to be problems with the law of rape given the conviction rates, which have been falling to levels that many believe are unacceptable. The finger has been pointed at the law in relation to consent and the Bill seeks to address that inter alia by the rebuttable presumptions in Clause 78.
The Government clearly hope that that will lead to greater conviction rates but, as the Minister intimated, doubts have been raised as to whether it will do that. Clause 78 not only states the blindingly obvious—for example, that a person who is asleep cannot consent—but perhaps more importantly treats the evidence of the complainant in a complex way that may be difficult for jurors to understand. There is a big question mark over how effective the Bill will be in that area. I was glad to hear the Minister say that he will look again at workability. Of course, we shall look at those areas in detail in Committee.
I hope that the Government will also be prepared to monitor closely the effect of the Bill on conviction rates in particular. Will the Minister say something today about how the Government intend to monitor the Bill after it becomes law, with particular reference to its effect on remedying what many see as the big problem of the low levels of conviction'?
There are also concerns about the other aspect of effectiveness, which is avoiding unintended consequences. Let me take the so-called sexual grooming offence in Clause 17; I say so-called because the offence as described in Clause 17 does not include any sexual grooming as such. The offence starts with a person meeting, or travelling with the intention of meeting, a child under 16, having communicated with the child at least twice. Meeting and communicating with a child are not criminal acts. Almost all meetings and communications with children are wholly innocent. There is no requirement in the Bill for the communications to be sexual in nature or 778 otherwise to prepare the child for a sexual encounter. The offence will hinge on whether the person's intent towards the child includes a sexual offence and will therefore create—to use Liberty's expression—what is effectively a "thought crime".
We support the creation of a sexual grooming offence provided that it is just that and not a legal abyss into which innocent fools are sucked. I hope that the Minister will say how and when the Government will monitor the effectiveness of the clause in catching those with paedophile intentions. I am sure that I do not need to remind the Minister that the merest hint of a paedophile can unleash the most frightening mob violence. In whatever form the clause becomes law, it is important to ensure that it is properly monitored.
I shall deal briefly with my second theme of consistency. The Bill contains a range of offences relating to adults, to children of various ages and to those suffering from a mental disorder or a learning difficulty. It is not self-evident to me that the penalties prescribed by the Bill are internally consistent; for example, under Clause 11 there is an offence of inciting a child to engage in sexual activity which carries a possible term of up to 14 years' imprisonment whereas the corresponding offence in relation to a person with a mental disorder or a learning difficulty carries a life sentence. I shall take a lot of persuading of the logic of that and that is not the only example. We shall look carefully at how consistently the Bill approaches the same offence involving different victims.
My third theme is over-criminalisation. That is a very real issue because several of the offences as drafted will potentially criminalise activity that many people believe should not be so treated. One example is sex between young people. Whether we like it or not, teenagers experiment with sex on an entirely consensual basis. It will be an offence, subject to up to 14 years in prison, for an 18 year-old to have consensual sex—or even consensual heavy petting—with a 15 year-old; and if two 15 year-olds are involved there could be a sentence of up to five years. Another example involves sex between two individuals with a mental disorder or a learning disability. I am sure that we all believe that such individuals have as much right to a private sexual life as anyone else. Clause 33 could well criminalise that activity and punish it with a life sentence.
The Government recognise, I believe, that in the circumstances that I have described it would not be in the public interest to prosecute unless there were some other aspect of exploitation or abuse. But, if the Bill as drafted becomes law, its effect on the lives of individuals will be in the hands of the Crown Prosecution Service and the police. I am sure that we shall want to reflect on that during our consideration of the Bill, but for today I hope that the Minister will say something about how in practice the law will be applied and why narrower drafting is not appropriate.
My last theme is whether the Bill passes the acid test of meeting the legitimate concerns of the public about the protection that the law should provide. I refer to the new offence of sexual activity in public as set out in 779 Clause 74. It legitimises what is known as "cottaging"; that is sex between homosexuals in a public lavatory provided that it is in a cubicle and hence not seen. Mr Hilary Benn, a Minister in the Home Office, has been widely reported as confirming that.
I believe that ordinary people are as outraged by hearing such sexual activity in public lavatories as they are by seeing it. In particular parents do not believe that their children should be exposed to such behaviour. For the record, I believe that exactly the same principles apply to heterosexual sex or to sex between two women.
The Minister may well say that the existing offence of outraging public decency remains. But the plain fact is that the Government's drafting of Clause 74 will be regarded as giving the definition, by exception, of acceptable behaviour. I was glad to hear the Minister say that he is prepared to reconsider that. Also Clause 74 allows sexual activity in a dwelling house with the windows wide open, lights on and so on, but prohibits the same activity in a private garden. I can see a whole new dimension to disputes between neighbours opening up. The balance in Clause 74 is not right and we shall have to return to the matter in Committee.
I conclude by repeating that on these Benches we pledge to work constructively during the Bill's passage to achieve the right balance between safeguarding the public and protecting the rights of individuals. We rightly pride ourselves on being a revising Chamber. So many important Bills receive little scrutiny nowadays in another place that the responsibilities on your Lordship's House are great and even more so when a Bill starts here. On these Benches we look forward to the task.
§ 11.35 a.m.
§ Lord Thomas of Gresford
My Lords, it is important to set out a principle at the beginning: that sex between two consenting adults and, in our culture, in private is a healthy, life-enhancing, pleasurable activity. That should be recognised as in my view a great amount of deviant behaviour takes place because it is not recognised due to guilt, inadequacy and immaturity.
What is the role of the Government in approaching sex offences? It certainly is not to try to uphold an outdated view of morality. The criminal law should not be used to perpetuate values that no longer accord with contemporary standards. The argument about same-sex relationships is dead. I am pleased that that is made clear in the Bill.
The criminal law is a tool to protect the weak and to punish the wicked. The Bill is about defining precisely the circumstances in which it should be used. I also commend and congratulate the Minister on his introduction. There is no ideological difference between the government Benches and these Benches on the thought that has gone into the Bill. However, I am concerned about the new offence of rape as defined in the Bill. I am not happy that the term "rape" is maintained. Other rather antiquated words such as "bestiality", "incest", and "buggery" have all disappeared and modern language has been used. "Rape" is an emotive word but it has been retained.
780 There is proper concern that only seven per cent of complaints made to the police about rape result in convictions. To some degree governments are fuelled by a belief that that is due to the defence of honest but unreasonable belief that was permitted in the case of Morgan some years ago. I disagree that that defence is why the acquittal rate is so low. In my view, peculiarly in rape cases, there are false accusations. Few people go to a police station to complain about a burglary to their homes that has not happened or a punch in the face that has not happened. But the experience of the courts is that false accusations are frequently made for various reasons that I need not go into.
I also believe that many perfectly proper accusations are withdrawn. Supposing two people who have lived together for some time, either married or as partners, fall out; the wife decides to sleep in a separate bedroom; she falls asleep and the husband gets into bed with her and attempts to have a reconciliation by trying to have sex with her or has sex with her when she is asleep. Under the terms of the Bill, that would be rape.
The woman, feeling very wronged, goes to the police station and makes a complaint. These days, she is treated very sympathetically. She is shown the rape suite, where she has to undergo various unpleasant experiences of medical examination and close questioning as to her allegations. She will then be visited by the rape support or victim support people, who will be very sympathetic and tell her that her partner or husband will get five years' imprisonment. That is the starting point for sentencing in a rape case. When she knows that and realises that the person with whom she has been living for a considerable period of time will lose his home, his job, his career and his name, that his home will be broken up and he will spend many years in prison, the rape allegation is swiftly withdrawn. That is because of the way in which we use the emotive word "rape" and attach to it a high level of sentencing.
A further reason for the low rate of convictions is that it is often one person's word against another. The burden is on the prosecution to prove that the defendant has no honest belief in consent. The prosecution has to satisfy that to the highest degree, and it may well be that a jury cannot be sure in the circumstances that are placed before them.
How should we approach the matter—and how does the Bill approach it? There are two ways in which to approach criminal liability. First, there is the subjective approach, which punishes the evil intent of a person—what he had in mind when he did the act that is punishable by law. The subjective approach is the one adopted in more serious cases. Secondly, there is the objective approach. The law can draw a line in the sand and say that it does not matter what the defendant was thinking and that if he crosses that line he has committed an offence.
The best example of the objective approach is speeding, which is very much in the news at the moment. The law says that one must not drive at more than 30 miles per hour, and if one goes faster than that 781 what one has in one's mind—one's intent—is neither here nor there, because one has broken the norm that the law draws. However, there are problems when a tribunal of fact—magistrates or a jury—is asked to draw an objective line in a particular case. It may have to ask what a reasonable man would have done in the circumstances in which the defendant finds himself. Applying that to the offence of rape, the Bill raises a question: what belief would the reasonable man have had in all the circumstances as to the consent of the complainant? As soon as the objective test is introduced into a serious crime, difficulties begin to arise.
The review, Setting the Boundaries, which the Home Secretary set up in 1999 and which reported in April 2000, was divided as to which approach should be adopted in considering rape. It asked whether a subjective approach should be adopted—whether we should take into account what the defendant had in mind—or an objective approach, which would say that, whatever the defendant had in mind, a woman had been raped and had suffered. She had the hurt, and he would be punished for it, even if he did not realise what he was doing.
The review pointed out that the United States takes one view—the objective approach—and that Australia takes a subjective approach. New Zealand has found a way in between; it is what is called the subjective and objective test, which means that a defendant may hold a subjective, honest belief in the complainant's consent, but that belief is subject to a test of reasonableness.
The Bill introduces an objective test into rape. There is only one other serious criminal offence for which there is such an objective approach. It arises from a case called Caldwell, in 1982, in which I regret to say that I failed to persuade their Lordships that a subjective approach should be maintained in a charge of criminal damage. The prosecution has to show merely that a defendant failed to put his mind to a risk that would have been obvious to the reasonable man. That is highly controversial. My son telephoned me from Cambridge, where he was reading law in the late 1980s, and said, "Dad, what on earth did they discuss in lectures in criminal law before you lost that Caldwell case?" That is the only serious offence in which an objective approach is followed in British law.
On the other hand, reasonableness is a concept used in connection with common law and statutory defences. However, there is a subjective element. For example, there is a defence of reasonable self-defence, reasonable defence of property, reasonable defence of other people, and the statutory defence under the Criminal Law Act 1967 of using reasonable force to prevent a criminal offence from taking place.
The subjective element involved arises from the well-known dictum of Lord Morris of Borth-y-Gest in a case called Palmer. He said that,it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action".782 He went on to explain that a jury's ability to take into account what the person in that particular situation thought was reasonable was an important element in reasonable self-defence. That approach was described by Lord Justice Ormrod, in a case called Shannon, as,a bridge between what is sometimes referred to as 'the objective test', that is what is reasonable judged from the viewpoint of an outsider looking at a situation quite dispassionately, and 'the subjective test', that is the viewpoint of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment he may be subjected".In those offences, what is reasonable is considered in the context of a defence and not as proof of an essential or core element of the offence. I apologise if the argument is getting a little technical, but I am trying to convey to your Lordships that the new definition of rape introduces an objective element that is almost unknown in criminal law.
Provocation is another instance where, in defence to a murder charge, the reaction of the defendant is compared to the reaction of reasonable man. That has given rise to all sorts of problems of definition. The Privy Council held one way, four to one, as to what "a reasonable man" meant. The House of Lords held three to two in the other direction—and the three who agreed did so for different reasons.
Under the Bill, criminal responsibility for rape attaches to the defendant if he intentionally has sexual intercourse with the complainant without her consent and either, subjectively, does not believe that she consents or, objectively, in circumstances in which a reasonable man would have doubted whether the complainant was consenting, does not act in a way a reasonable man,would consider sufficient … to resolve such doubt".As to subjective lack of belief, it suffices that the defendant has given no thought as to whether the complainant consents. As to the objective belief, once one introduces the concept that it is sufficient, not that the defendant thought that she was consenting but that a reasonable man would have had a doubt about it, the defendant is liable to be convicted and sentenced to life imprisonment on the jury's assessment, not of his actual state of mind and actions, but of the hypothetical state of mind and actions of a hypothetical person.
No doubt the courts can, as they have with provocation, redefine what is a reasonable man; whether that reasonable person should have the same age, sex and characteristics of the defendant in the specific instance. But it is unfortunate that this new concept should be brought in, and brought in by rebuttable and irrebuttable presumptions.
I shall not weary noble Lords by talking about presumptions. Suffice it to say that the review which published the report Setting the Boundaries considered whether there should be presumptions in a rape trial and decided that there should not. Yet, the Government have brought in presumptions.
I have attempted to draw up a specimen direction in order to illustrate my points. I shared it with the noble and learned Lord and then redrafted it in the light of 783 our conversation the other day. If one tried to sum up the law to a jury on the basis of this complex Bill it could not possibly understand it and inevitably injustice would follow. The Government should be examining—I hope we can explore this area during the progress of the Bill through the House—a simple solution, following the New Zealand approach, so that rape is the act of intercourse with lack of consent by the complainant. The persuasive burden of proof should then pass to the defendant who must prove that he had an honest and reasonable belief that she was consenting. That is simple and understandable. It does not involve bringing in presumptions or other difficult legal concepts which, from my experience, a jury has no chance of understanding.
I apologise for speaking for so long about the matter, but I think that a great deal of work must be done on the concept.
There are many other issues in the Bill. I could be here for well over an hour in discussing them. I am concerned about the learning disability or mental disorder provisions, which increase from two years to life the sentence for intercourse with someone suffering from those disabilities. That effectively means that a person suffering from those disorders is denied the pleasurable activity of sex for the whole of his or her life.
I am also very concerned about sexual activity in public. It strikes me as being ridiculous that intercourse in a public toilet with the door shut is okay, but in the open air on a mountainside apparently it is not. Having regard to the right to roam, which the Government have introduced, there are few of us who could examine our consciences and say that we have not committed that offence at some time in our lives.
My noble friends who are to speak after me will cover other aspects of the Bill. We give it a qualified welcome. We shall work very hard to try to make it practical and workable with a view to ensuring that deviant sex is properly punished and that those who inflict it on others are taken out of public circulation.
§ 11.54 a.m.
§ Baroness Gould of Potternewton
My Lords, it is encouraging that the Bill has been widely welcomed by the organisations that work with children and deal with matters of rape and sex offences. Sex offences are dreadful crimes that deeply affect the lives not just of the victims and their families. They can create fear in whole communities. While these are difficult and sensitive issues on which to legislate, society has to be clear about what is acceptable behaviour. There must be a clear understanding of the penalties that will be imposed if the standards are breached. Only then will the public feel confident that they are adequately protected.
All too often we hear asked: cannot more be done? The Bill attempts to answer that question. I am sure the Minister will agree that it is not perfect in all its detail, but it is a serious and significant Bill and should be treated as such. That is why I have been amazed and angered by the trivial way it has been treated by some 784 sections of the media. An article in the Observer on 2nd February said the Bill read like a charter for people who like to lock up other people and that the hard core of the Bill itself comes from a noisy lobby alarmed by the current rate of rape convictions.
The Daily Telegraph on 31st January referred to the Bill in its entirety as a fantastically silly measure. The following day it referred to it as not righting any obvious injustices. It is a pity that those who write such comments, seemingly with authority, do not believe that it is right to provide protection for the vulnerable, both adults and children, and to protect children from sexual exploitation, from prostitution, and from rape, a quarter of all rape victims being children.
The Bill is large, as the noble Baroness, Lady Noakes, said. It covers many areas, on which I am sure we should all like to talk. I wish to concentrate my remarks on two key issues; namely, a number of the provisions which seek to protect children and the question of rape. Rape is a crime,physically performed by a man".It is an offence carried out by men, mainly against women and girls and to a lesser extent by men against other men and boys.
One of the Bill's most controversial issues, as the noble Lord, Lord Thomas of Gresford, said, is the proposal to introduce a two-stage objective test of reasonableness. If that shifts the focus of rape trials back to the legality of the defendant's conduct, it must be right. The existing law, where a defendant must be acquitted if he honestly believes the complainant consented even if that belief is unreasonable, cannot be right and must be a deterrent to victims taking the perpetrator to court.
The noble Lord, Lord Thomas of Gresford, is right: we must protect those who are wrongly accused. We must get the balance right. No-one should be convicted who genuinely and reasonably believes that consent was given. However, I found some of his remarks more than a little disconcerting. As someone who has spent many years fighting for the introduction of the offence of rape within marriage and for better treatment of women in rape cases, I was a little disturbed by some of his comments. I am sure that we shall have further discussions in Committee.
I firmly believe that the introduction of reasonableness will add greater clarity to the law on consent and will send out a strong signal that sexual intercourse and sexual activity must be consensual; that assumptions will not do. At last it will be possible to challenge myths such as,women say no but they really mean yes",and,men have a point of no return".Those beliefs currently underpin the law.
The evidence shows that many women who have been raped have little confidence in the present system of justice. That is hardly surprising when, as we have heard, the attrition rate continues to fall and convictions are now at an all-time low of 7 per cent. It is true that there has been a change in the nature of reported rape cases. That has encouraged some to 785 argue that a lower sentence for date rape would increase the number of convictions because juries might be more inclined to convict. But I believe the Government are right not to make that distinction.
Men must not be able to rape with impunity women and men with whom they have previously had sexual relations. Accepting a lift home believing it to be the safest way to get home, or being invited in for coffee, is not consent or an invitation to sexual activity. The focus in a rape trial must be the legality of the conduct of the defendant, not the propriety of the complainant's actions.
Rape is rape. In some ways it is worse when it is committed by a man one knows and trusts. There are no logical grounds for creating a lesser offence for date rape. The use of drugs in order to commit rape can only be described as despicable. The Bill is right to increase the penalty for drug-related rape to 10 years. While the list of presumptive circumstances is welcome, can my noble and learned friend the Minister clarify why that is a definitive, not a non-exhaustive, list allowing the courts to develop common law when different circumstances apply?
All sex crimes are abhorrent, none more so than when committed against children. Clauses 2, 4, 6 and 8 send a clear message that men who willingly engage in sexual activity with a child under 13 are committing a serious criminal offence attracting a life sentence. No longer will men be able to claim that sex with children under 13 was consensual, such children being deemed incapable of giving legally significant consent.
Concerns have been raised and further clarification is sought about clauses that make it an offence for children to have consensual sex between the ages of 13 and 15. While we might feel anxious about teenagers' sexual development, it is a fact of life that young adolescents will engage in sexual behaviour. From a study published in The Lancet in 2001, of more than 11,000 men and women interviewed 30 per cent of men and 26 per cent of women reported having had heterosexual intercourse before the age of 16. While it may not be desirable for young people to engage in sexual activity until after 16, the reality is that the average age of first sexual experience is 14 for girls and 13 for boys. Although in those circumstances prosecution is unlikely, is it right to criminalise what are innocent consensual relationships rather than addressing the issues through the child protection system?
An NSPCC report in 2000 identified that between 25 and 40 per cent of all sexual assaults on children are perpetrated by juveniles. Clause 14 introduces a new offence designed to protect children from abusive behaviour by other young people as well as adults. While I appreciate that there has to be a criminal offence to deal with young people who commit serious sexual offences, will my noble and learned friend the Minister consider that the Bill provides the opportunity to introduce a strategic approach to children and young people who display signs of sexually harmful behaviour by ensuring the co-ordination of assessment, referral and treatment 786 services and the provision of counselling services? It is important that children who sexually abuse must be treated as children first and foremost.
Clause 15, which creates the offence of arranging or facilitating the commission of a sex offence, is causing concern among those who give contraceptives and sexual health advice to young teens. I declare an interest as president of the FPA, which provides such help and advice. The UK already has an unacceptably high level of teenage pregnancy among girls under 16. There is an urgent need for realistic education to avoid the spread of AIDS and sexually transmitted diseases. We must not deter young people from seeking help or professionals from providing it.
I understand that the Gillick principle of being able to give advice in the best interests of the child will apply but the organisations concerned need further reassurance. It must be recognised that organisations that give help, advice, treatment and support to children and young people in matters of sexual health should not be regarded as aiding and abetting a criminal offence.
Sex offenders have always found ways of gaining the trust and confidence of children, all too often to sexually abuse them at a later date. Deceit is their stock in trade. New technology provides greater scope for grooming and befriending children for their own sexual purposes, whether it be through an Internet chat room, text messaging or the webcam. We must ensure that all the relevant sexual offences within the Bill are considered in relation to new technologies. What is illegal offline must be illegal online. That raises the issue of the role that will be imposed on the Internet industry in gathering information or investigating.
Liberty has raised the concern that restrictions will be placed on people displaying inappropriate sexual behaviour before an offence is committed—prosecuting people for what they might do, not for something that they have actually done. I understand the concern—as does the noble Baroness, Lady Noakes—that problems could be created by over-zealous neighbours or the police and the view that the offence will criminalise perfectly innocent behaviour towards children. But 16 cases have been reported in recent years of children being sexually abused by adults where the initial contact was through the Internet. Of course there must be proof of intent before action is taken but that has to be balanced by protecting the child before actual sexual activity takes place.
Another aspect of abuse of children is that of trafficking, which is a serious abuse of human rights. Trafficked victims are predominately 13 to 17 year-olds. On top of the sexual exploitation that a child suffers as a result of being trafficked, the experience itself often involves rape, and sexual and physical violence. The noble Lord, Lord Thomas, referred to the word "rape". I have great difficulty with the word "trafficking", which is very emotive. I wonder whether some other form of wording might be used.
787 Clauses 61 to 63 respond to that serious and terrible crime and are welcomed, but there is concern that the Bill does not effectively protect all children up to the age of 18. Can my noble and learned friend give further consideration to how that might be achieved?
Many matters of detail will be considered in Committee. I hope that during the course of the Bill's passage through your Lordships' House, it will retain the basic principles that run throughout of providing protection for those most at risk from sexual abuse, be they vulnerable adults or children.
§ 12.6 p.m.
§ Baroness Blatch
My Lords, as my noble friend Lady Noakes said in her excellent opening speech, I will concentrate predominantly on the protection of young people. As we come to debate the Bill, I must say how much we miss the presence of my friend, the late Lady Young. I shared with her a long-standing concern about the protection of children. In November 2000, Lady Young and I moved amendments to the Sexual Offences (Amendment) Bill that would have closed many loopholes that existed in the abuse of trust sections in that measure. At the time, the Government rejected all those amendments, casting them aside variously as unworkable or unnecessary. All the Hansard references that I shall make today as regards this House relate to 13th November 2000.
After the passing of the Sexual Offences (Amendment) Act 2000, Lady Young and I went to see the Home Secretary, then Mr Jack Straw, to urge him to use his powers in the Act to extend the abuse of trust offence by regulation. He promised to consider our concerns but soon afterwards was moved to the Foreign and Commonwealth Office. Mysteriously, all the papers from our meeting were lost. Some months later, the Private Secretary admitted that it was his fault.
The new Home Secretary Mr David Blunkett, in an extraordinary change of heart at the Home Office, took the view that the abuse of trust provisions were sufficient. In a letter dated 12th July 2001 to Lady Young, he wrote:I have done everything I can to ensure that there are safeguards in place on a whole range of issues of concern to you. That was not the case. The Home Secretary could have done more and could have done it sooner. However, persistence pays. Having argued the case for the extension of the abuse of trust provisions for two years, I am delighted that some of the very amendments to the 2000 Bill that I moved are included in this measure. On behalf of thousands of vulnerable young people, I am delighted that the Government changed their mind.
My original amendments to extend the abuse of trust provisions to adults acting as learning mentors who provide one-to-one help to young people in schools and to personal advisers who work closely with young people leaving care are now included in Clause 23(6) and (7). The current Lord Privy Seal, the noble and learned Lord, Lord Williams of Mostyn—then Attorney-General rejected—my amendments on mentors, saying that the powers of the Secretary of State to define additional abuse of trust relationships by order were sufficient. I refer your Lordships to 788 cols. 75 and 117. In the event, the Home Secretary chose not to exercise his order-making powers in that respect. In fact, the power has not been exercised at all.
I moved amendments to extend the scope of the existing law covering abuse within the family. Although it is regrettable that the word "incest"—a word universally understood—will not be used in the new offences in Clauses 28 to 32, I am nevertheless pleased that the scope of the protection to cover abuse within the family has been significantly widened. For example, step-parents are now included, and so is abuse by a family member of the same sex.
On another area of concern, adults in a position of trust can retain their influence over a young person long after that young person has left their care. I therefore moved an amendment to cover grooming, or the preparation for later abuse, by a person in a position of trust. We all remember the Waterhouse report, produced three years ago, that concluded that children are especially at risk from abuse when they leave care. Some of the most grievous abuse took place because adults in a position of trust groomed children for later abuse, after the children had left care homes. Clause 17 seems to focus on grooming through such things as Internet chat rooms. It does not go as far as my previous amendment.
The Waterhouse report was published on 15th February 2000—almost exactly three years ago. Children should not have had to wait until now to obtain the protection that they need. There are many other areas where the Government have failed to act that are not addressed in the Bill. For example, I moved amendments covering ancillary staff such as caretakers, supply teachers, childminders and social service inspectors. Sadly, the Bill does not appear to cover abuse of trust in any of those cases.
I am disappointed that provision has not been made in the Bill to increase protection for young people in youth groups such as scouts and youth centres. That was raised in 2001 with the previous Home Secretary, who expressed his sympathy for the points that we made. Even the noble and learned Lord the Lord Privy Seal, when Attorney-General, was sympathetic to extending abuse of trust to youth group leaders. But the Home Secretary did not follow that through by using his order-making powers. I hope that the Minister will state that that is an oversight that will be addressed by amendment during the Bill's passage.
I strongly welcome the provisions that in many cases greatly strengthen the existing law on sexual activity in public. Clause 74 makes it an offence to commit sexual activity in a public place. That is much stronger than the existing law based on "outraging public decency". Outraging public decency has proved to be a weak law in such cases—a point made by my noble friend Lady Noakes. When it comes to public lavatories, that is the only law that will be now left to protect the public. The Government are repealing the existing law of gross indecency and putting nothing in its place. As the Minister in another place made clear, that means that homosexuals who commit sexual activity in a public toilet will not be breaking the new offence of sexual activity in public, provided that the cubicle door is closed.
789 Public lavatories are no places for sexual activity—be it homosexual or heterosexual; whether the cubicle door is shut or open. What mother would want to send her young child into a public lavatory if she believed that homosexual activity might take place there? How would the Minister feel if a son of his was using the cubicle next to one in which homosexual activity was taking place? The Bill will make public lavatories no-go areas for families in Britain. The Bill will do nothing to prevent the offensive public nuisance of homosexuals regarding public lavatories as regular meeting places where, once inside a cubicle, they can legally engage in sex.
Quickly changing tack, I am pleased that the Government now accept that it should be an offence to groom children for sexual abuse, as Clause 17 provides. The scenario envisaged seems to be that of e-mails exchanged in an Internet chat room. As I understand Clause 17(1)(c), the child must be under the age of 16 when the two people meet. However, there are other cases of grooming that the Bill does not seem to cover. For example, that offence would not cover those 16 and 17 year-olds who had been prepared for abuse by an adult in a relationship of trust over them before the age of 16—for example, a social worker.
Some of the harrowing real-life examples of this were documented in the Waterhouse report on child abuse cases in North Wales. I outlined several examples in our debates on abuse of trust at cols. 67 and 68. Of particular concern are cases such as one involving the notorious Reginald Cooke. One of his victims was an 18 year-old who was not in care at the time of the offence, but had met Mr Cooke previously when he had been in the care home.
In Committee during the passage of the Sexual Offences (Amendment) Act 2000, I moved an amendment to criminalise the grooming of under-18s by those in a position of trust. The House accepted the amendment at col. 79. It would have created an offence of an adult over 18 preparing someone under 18 to engage in sexual activity with them later. That would have been a broader offence than the new offence proposed in the Bill. However, the Commons was not even allowed to consider the amendment because, before any discussion could take place, the Government wielded the Parliament Act to force the Bill through and the amendments fell.
I should be interested to hear why the Government have not included a provision on grooming that would provide protection for 16 and 17 year-olds in such cases of abuse of trust. When it comes to caretakers, I should have thought that after the Soham case involving the two young girls, Jessica and Holly, even the Government might see that caretakers need to be classified as being in a position of trust over young people. Parents should certainly expect to be able to trust the caretaker of their child's school.
Sadly, such people do abuse their position. A school caretaker, Eric Drummond, was found guilty of repeatedly sexually abusing children in Scotland in 790 October 2001. In that case, the caretaker went to jail for only three months. If the Government had accepted my amendment to extend abuse of trust to caretakers, a convicted abuser could have been sent to jail for five years.
The noble and learned Lord, Lord Williams of Mostyn, the then Attorney-General, ruled out my amendment on caretakers saying that such people were not in a caring relationship of trust. Surely the Government must think again on that point.
Another gap in the abuse of trust provisions is that they do not apply to part-time pupils or supply teachers. Clause 23(5) limits the provision to full-time pupils, which I of course agree that most pupils are. However, older children in particular—the very people whom the abuse of trust offence was created to cover—may attend school or college part time. In fact, the education Green Paper on 14 to 19 year-olds advocates very flexible provision that may include part-time attendance by teenagers at school, college or workplace.
Also, Clause 24(3) stipulates that the offender must be,regularly involved in caring for, training or supervising",the victim. Does that requirement rule out a supply teacher? Some supply teachers are employed on a regular basis, but others can be employed much more sporadically. What constitutes regularly? I suspect that some noble Lords will remember the supply teacher, Amy Gehring, who was in the headlines a year ago. In an interview on the "Today" programme, Miss Gehring admitted openly to having had a sexual encounter with a school pupil. Similar relationships between supply teachers and pupils should certainly be covered by abuse of trust legislation.
Can the Minister explain, if a pupil is abused by a teacher who is in a position of trust, why it should matter whether that teacher is part-time or full-time? If the Minister agrees with me on that point, will be state that the Government would agree to an amendment to include part-time staff?
In November 2000, along with the noble Lords, Lord Northbourne and Lord Carlisle of Bucklow, I moved an amendment that would have extended the definition of incest to cover adoptive parents, adoptive siblings and step-parents—at cols. 106, 110 and 115–6. The amendment would for the first time have also classed homosexual activity between close family members of the same sex as incest.
This House was denied a proper debate on this amendment (and several others) as no Report stage was allowed on the Sexual Offences (Amendment) Bill because the Parliament Act was enforced. However, the arguments to support the amendments in November 2000 were clearly convincing because Clauses 28 to 32 set out proposals to deal with incestuous relationships. I am only sorry that so much precious time has been lost by the delay.
Finally, much of the Bill is welcome, if somewhat overdue. It certainly concentrates the mind to know that too many children live in fear of, and are trapped by, the very people who are in a position of trust over 791 them. Any reading of the Waterhouse report is chilling, graphically recording, as it does, the experiences of young children who were abused, intimidated and groomed to be passed as sex objects around a circle of abusers by so-called carers.
I know that noble Lords on all Benches in this House will support the additional protection offered by the Bill. I hope, too, that they will look kindly upon any amendments that are intended to make the Bill even more effective. I have every confidence that the House will, as is customary, carry out its revising role with diligence and, as my noble friend Lady Noakes said, constructively.
I regard my personal contribution to the Bill as unfinished business and, in her absence, as a tribute to the work of my noble friend Lady Young who fought relentlessly to improve protection for vulnerable people, but especially children.
§ 12.21 p.m.
§ Lord Rix
My Lords, it seems that the noble Earl, Lord Russell, is unable to be in his place today. I trust that he is not unwell. I send him, as I am sure does the whole House, my kind regards. We shall sadly miss his contribution.
As president of the Royal Mencap Society, I am reminded that shortly after he had retired as Mencap's chairman, way back in the early 1960s, the late lamented Lord Longford coined the phrase, "No sex without responsibility". This Bill seeks to reinforce the dictum of the noble Earl which was perhaps not much heeded in that hedonistic era. The Bill attempts to rid us of predatory, exploitative, abusive sex. In particular, from my perspective, it seeks to tackle the predatory exploitative treatment of people with learning disabilities by people without learning disabilities. I heartily welcome, therefore, the Government's initiative to put matters to rights and the apparent support of many noble Lords in the House, voiced by the noble Baroness, Lady Noakes.
As the Minister stated—I thank him for his generous reference to me—in October last year, I introduced my own amateurish Bill to amend the laws on sex offences. That Bill was meant to encourage government to introduce their more comprehensive legislation in the wake of the comprehensive review of sex offences. I shall not claim credit for the outcome on two counts: first, because I am not yet quite happy with the outcome; and, secondly, because mine was only one of many voices asking for action following many words.
Sexual abuse of children is now widely recognised. All of us who are parents or who have had responsibility for children will have some concept of what child abuse means to children and their families. I am pleased, therefore, that the Bill offers further measures to protect our children. Much less is known about the vulnerability to sexual abuse of people with a learning disability. The extent and nature of that abuse is deeply disturbing. Behind Closed Doors, published in 2001 by Mencap, Respond, and Voice UK. highlights the experience of adults with a learning 792 disability and how poorly the current law serves them, for it offers only limited protection and is not an effective deterrent to abusers.
The incidence of sexual abuse may be as much as four times higher for people with a learning disability than for the rest of the population. There are an estimated 1,400 cases of abuse each year yet only 1 per cent of those reach conviction. Many cases go unreported. I applaud the Government's attempts to bring about much-needed reform to sex offences in that regard. However, I have a number of concerns—some already known, I believe to the Minister—and shall seek certain assurances during the course of our debates.
Offences relating to sexual activity with a person with a mental disorder or learning disability carry a maximum sentence of life imprisonment and are dealt with under Clauses 33 to 37. The underlying intention is to give powerful protection to those who cannot consent to sexual relations. This is not about denying to people who can make choices the right to make choices about sex. It is about defending the interests of those who are denied that choice and are the victims of others who see them as an easy target. However, as the draft stands, it is a defence for the perpetrator to argue that he could not have been reasonably expected to know that the victim had a mental disorder or learning disability.
As the noble Lord, Lord Thomas of Gresford, indicated—I think that I understood the point correctly—reasonableness is a slippery concept. I am anxious that hot blood, drink, darkness and the silence of the victim could too easily provide a let out and take the case back into the uncertain area of possible consent. I do not know about love being blind. I am sure that lust is blind and I am nervous about the courts accepting temporary blindness to the glaringly obvious as an excuse which undermines the new absolute protection.
People with severe communication difficulties are in no position to point out to an assailant that they have a severe learning disability. Currently the law does not classify who can and cannot consent to sexual relations and the Bill does not appear to recommend a clear statutory definition of capacity to consent as recommended by the Government's review, Setting the Boundaries. A functional test of capacity should draw on the Law Commission's statutory definition of capacity to consent and the proposed definitions also set out in the joint British Medical Association and Law Society proposals. Those proposals, hacked by Mencap, are based on the principles that an individual would need to understand the basic elements of sexual behaviour and be able to distinguish that sex is different from non-sexual or medical contact. They should also understand that sex can have foreseeable consequences such as pregnancy or a sexually transmitted disease. If they cannot meet those criteria, then they are unlikely to be able to consent to sexual relationships.
793 I fear that without a clear test of capacity courts would find it hard to prosecute on these offences. I seek assurances at this stage of the debate that we shall have a statutory test of capacity in time for the implementation of the Bill.
Clauses 38 to 42, dealing with offences of inducement, threat or deception, are also welcome. The existence of these offences should provide wider protection to people with a learning disability. There is a danger in these discussions that we shall present "the community" as an environment from which people with learning disabilities should be withdrawn because it is too dangerous. Frankly, living in the community is a right not an option; and the institutional alternatives we have offered have been no safer. But vulnerability is an issue. While the average person may dismiss such threats as, "I will tell your parents if you do not do as I say", some people with a learning disability may feel genuinely threatened by such an approach. The specific offence to cover this deliberate targeting and pressure into having sex is much needed and I hope that it offers the necessary safeguards.
I turn to the third and last section on vulnerable adults. Clauses 43 to 51 are designed to discourage abuse of trust and to penalise it effectively where it occurs. The message is quite simple: a person employed to look after a vulnerable adult should provide support and care, not exploit his or her position and betray trust by sexual activity. Care workers are entrusted with work of an intimate nature. They do not have an easy job and they certainly do not have a well paid job. The overwhelming majority are deeply committed to their work. However, there are cases of abuse committed by care workers and abusers do seek employment in intimate caring roles, for they then have legitimate access to vulnerable people and are in a position of power and influence, including one-to-one access without supervision.
This imbalance of power undermines the ability of the person who is cared for to give free consent and may inhibit their ability to seek help in an abusive situation. A sexual relationship between a staff member and a person with a learning disability is intrinsically unequal and should be considered unacceptable. Compliance is not to be confused with consent—hence the coverage in these clauses both of those who can and those who cannot consent. If a couple want to have consenting sex, the care worker member of the couple needs to leave the role of carer. That is a proper approach to sexual rights—not allowing a carer to exploit the cared-for person's dependency.
During my discussions with the Minister, who kindly gave time to me and to Mencap colleagues, I sensed that the abuse of trust provisions are seen in the noble and learned Lord's department as being residual provisions to deal with the minority of cases which cannot be dealt with by other provisions in the Bill which allow for more severe penalties. That is not how I see things.
794 Only the abuse of trust provisions give real protection to the vulnerable person in a particularly vulnerable situation who is able to consent in theory but has little choice in practice. The provisions relating to threat or deception to procure sexual activity with a person with a mental disorder or a learning disability also fail to provide adequate safeguards because they will be so damnably difficult to prove.
In those circumstances where, not to mince words, we are talking in some cases about rape, the penalties proposed in the abuse of trust provisions stop far short of those appropriate for such a heinous offence. The provisions are crucial and will, sadly, loom much larger than the department seems to expect.
If I correctly understand Clause 51, the other weakness of the abuse of trust clauses is that they allow a care worker who is abusing someone before the Act came into force to carry on abusing them. The original sexual activity had to be lawful at the time. But it is a very odd approach in creating a new offence to decree that if the offence was committed before the new provision takes effect, it will not be an offence subsequently.
Lastly, I repeat that none of these measures is an attempt to stop genuinely consenting adults from having a sexual relationship. Many people with a learning disability have successful marriages, successful partnerships and, indeed, many are parents. I know that the Bill will receive its customary diligent scrutiny by your Lordships' House. Its overriding principles are ones that we shall probably all support. There may be others of your Lordships who share my rather large scintilla of doubt as to whether we are going far enough and being firm enough. If the Government are convinced, I hope that they may feel moved to table their own amendments to resolve these doubts. I shall welcome reassurances or, indeed. change.
Having taken so long to come so far, we need to finish the job and show that we are a society concerned to ensure that justice is done. At least some of your Lordships will have noticed that the scales of justice are missing from the statue in the Prince's Chamber. I am told that they went absent without leave during the Second World War. The scales of justice for people with a learning disability have been missing for much longer than 60 years. The Bill before us gives a chance to restore them to their rightful place. This time we must not fail to get the balance right.
§ 12.34 p.m.
§ Lord Alli
My Lords, I welcome the Bill. As your Lordships might expect, I want to concentrate on the important sections relating to the repeal of gay offences. As vice-president of UNICEF in the UK, I shall touch also on the protection of children from sexual exploitation and child trafficking, as well as the significance of the Bill as a whole.
Without wishing to sound too flippant, the Bill perhaps fits the adage that one waits for important reforms for years; then, like buses, three come along at 795 once. Like someone waiting at the bus stop in the rain, I may have wanted many of the reforms sooner, but I am nevertheless grateful for them now.
I thank the Government for the rigorous policy-making that lies behind the Bill. It is especially needed because much of the law that it replaces has been on the statute book since the 19th century. However, it would be wrong to think that this reform of Victorian law is an uncontrolled triumph of permissiveness over morality. The law, which in some cases is over 100 years-old in its origin, fails to offer the protection that society needs from today's modern crime and abuse, as well as reinforcing the rights that modern society demands.
The Bill addresses some of those problems and provides a framework of protection against 21st century threats. It aims to protect children from the abuse of trust, to ensure that sex abuse in the family is treated as the serious and terrible crime that it is and to stop the Internet from being used by paedophiles to prey on their targets. These are all crimes that our predecessors in both Houses perhaps did not need to consider.
I wonder whether my noble and learned friend would also give further consideration to three specific proposals relating to paedophiles and convicted sex offenders. First, will he look at giving judges the option to confiscate the passports of convicted sex offenders if they are considered a danger to children when travelling overseas? Secondly, will he consider ensuring that the British police contact police overseas if convicted paedophiles are travelling abroad in order that they may be tracked? That was made possible in the Criminal Justice and Court Services Act 2000, but it is not automatically done. Thirdly, will the Minister look at closing the eight-day loophole whereby sex offenders on the sex offenders' register must notify the police when leaving the UK if they are to be away for eight days or more. Three days is a much more realistic time period.
I give notice to my noble and learned friend that at Committee stage I should like far more detail on the provisions relating to child trafficking, and on the sex offenders' register in relation to those people placed on it but whose offences are now deemed to be legal.
I should also like to highlight other important reforms contained in the Bill. The key elements introduce fairness into the law for men and women, both gay and straight. Current law only allows certain aspects of sexual activity between consenting gay men. Some offences relating to gay sex still remain on the statute book. Incredibly, these include the laws under which Oscar Wilde was prosecuted.
Although very welcome, the piecemeal reforms to the prohibitions on gay sex that have taken place during the past 30 years have left the law in somewhat of a confused state. I hesitate to say a "bugger's muddle"!
The repeals contained in the Bill, and the new offence of sex in a public place introduced in Clause 74, will ensure that the law reflects the fairness expected in today's society. However, I caution my noble and learned friend on the Front Bench and the political masters in the Home Office. As well as welcoming the 796 joys of sex in many more interesting private places—at least I think I welcome it—I cannot help wondering whether the Bill over-extends itself by making it an offence to forget to close the curtains while having sex or having sex in the garden.
I am sure that many recognise the great tradition expressed by the phrase "an Englishman's home is his castle". To me, as well as meaning that we are a nation of gardeners and DIY enthusiasts, it also means that we believe that what we do in our own house and in our own private space is our own business.
The state has no right to involve itself in our actions. I welcome the chance to ensure that finally we have sex laws that respect everyone's right to privacy and understands that neither this House nor another place are in any position to judge what consenting adults—no matter how many of them—choose to do in the privacy of their own home.
The repeal of the laws of buggery and gross indecency—which only apply to male homosexual acts—and their replacement with laws which are sexually neutral, is hugely welcome as a final recognition that all people have equal rights to privacy and control over their sexual activity. To anyone who fears that the repeal of those gay sex offences will weaken the protection offered to the public from exposure to acts that they do not wish to see, I point out that Clause 74 should, although it may not at present, allay such fears. I highly recommend that noble Lords who have not had a chance to read the Explanatory Notes do so, if not for information, certainly for education. I think that they can still be found on the top shelf in the Printed Paper Office.
Noble Lords may remember the case several years ago where a heterosexual couple had sex in a packed train carriage. It was a surprise that they did not break any laws, despite the fact that most passengers would not wish to be exposed to their actions, no matter how long or delayed their train journey. Clause 74 will ensure that the public are protected from witnessing sex in a public place or anywhere where the participants might reasonably be seen by someone unintentionally.
I was amazed at much of the recent press coverage expressing outrage that the Bill would prohibit people from having sex in their gardens or in cornfields if their neighbour could see them. I must admit that I did not realise that so many people had sex in their gardens in view of their neighbours. Nor was I aware of a great rush of complaints about people having sex in their garden. The great British weather may offer greater protection than this Bill. But, in any case, I am glad that the Minister has said that he will look at the clause again to see whether the right balance has been struck between the rights of the individual and those of the public. That is hugely welcome.
It is 108 years since Oscar Wilde was tried and sent to gaol. It is finally time to see the back of laws that discriminated against him and so many other men in this country over the past century. So let us take this chance to ensure that, in the 21st century, people can 797 expect Parliament and the state to keep well clear of their private lives and to offer protection against some truly horrific sex crimes.
§ 12.41 p.m.
§ Lord Skelmersdale
My Lords, the noble Lord, Lord Alli, referred in his introduction to buses. In that case, the Home Office must be a veritable bus station. The phrase "legislative diarrhoea" springs to mind. But I must be serious. I first came into contact with sexual offences many years ago on a visit to Broadmoor. There I found a late-middle-aged man whom, for brevity, I shall describe as a serial indecent exposer—a subject that I cannot find in the Bill. He had been allowed to leave the hospital on several occasions but had always re-offended. He was not mentally ill but was kept in for his own good and that of society.
It is for the good of society that I welcome this Bill. It makes the law on sexual offences more explicit. However, like my noble friend Lady Noakes, I would be acting out of character if I did not have queries about it. As the noble and learned Lord, Lord Falconer, nearly said, the Bill is an amalgam of a restatement of existing law on sexual offences and a creation of new offences. My chief interest is the new offences; the mischief that they seek to control or, I hope, prevent; and whether there is consistency of purpose in the Bill. For example, there are to be new offences of sex with animals and corpses, which no civilised society could contemplate. At the same time, there is a thread running through the Bill of consensual sex. I ask the noble and learned Lord whether it is necessary to have two clauses relating to those practices when a simple amendment to the clauses on consent would serve equally well and reduce an already overburdened statute book containing more words than arc strictly needed. Are those abhorrent practices sufficiently common as to require legislation? I simply do not know the answer, but I am sure that the noble and learned Lord does.
I was surprised to read in the notes on the clauses of a new offence of bestiality. I am advised that a similar offence was on the statute book as long ago as 1900, when the judge at the York assizes pondered aloud in open court as to what sentence to give after the jury had pronounced a verdict of guilty of sex with a dog. He made the mistake of pausing, at which point a wit in the public gallery took the opportunity to shout "give him the cat".
The clauses on rape are odd, to say the least. The White Paper that proceeded it states in paragraph 42:One of the principles underlying our new offences is that they should not be gender specific. However, the offence of rape is clearly understood to be non-consensual penile penetration perpetrated by a man, on a woman or a man".It must be possible for one woman to rape another. I agree that rape is rape and cannot be subdivided. However, rape—or whatever word the noble Lord, Lord Thomas of Gresford, would like to use—carries a maximum sentence of life imprisonment. Yet the Bill appears to provide that the heinous crime of drug-assisted rape carries a maximum sentence of 10 years. 798 The two crimes are equally bad, so they should have the same sentence. That would send a signal that "date rape" is regarded by society as beyond the pale.
I am at one with the Government's proposals on child-trafficking and prostitution. I am particularly glad that they are creating new offences of sexual grooming and travelling in order to procure a minor for sexual purposes, whether in this country or abroad. I agree with the noble Baroness, Lady Gould, that sex between minors is a difficult area. It is inevitable that many children aged 13 and over will experiment with sex. Given the extraordinary amount of sex lessons in schools these days, children are almost given a licence to experiment. I have often wondered whether the incidence of teenage pregnancies has increased since sex education in schools became commonplace. Now is my opportunity to ask the Minister, who either ought to know or at least have the facility to find out.
Be that as it may, by reducing the age of consent for homosexual men from 18 to 16, the Government have, at a stroke, increased the amount of homosexuality in this country. Nevertheless, it must be right that consensual sex between a young adult—who, one must remember, may be as young as 16—and a child aged 13 to 15, should carry a lesser penalty than that of nonconsensual sex, or sex between an older person and a child of that age. But I agree with my noble friend Lady Noakes that we should look carefully at whether it is right to criminalise activity involving 13 to 15 year-olds.
My second girlfriend suffered an acute mental illness and was hospitalised for a long time. During that period, she met a young man in the same hospital. I am glad to say that they eventually got married. However, that period of my life made me very conscious of the problems of people with a mental illness. Much later, as some noble Lords will remember, I became ministerially responsible for people with a mental illness and those with a mental handicap. There are occasions when the former can either give consent or deemed consent to sexual relations. The latter, I suggest, never can. It is important that the courts can distinguish between the two. I will look carefully between now and Committee stage to see what guidance the Bill gives.
I particularly welcome Clauses 43 to 48 on the duty of care workers in this area. My noble friend Lady Blatch might consider an amendment to widen the definition of care workers to include teachers, whether part time or full time, and teachers' assistants, a group that she did not mention.
Like the Law Society, I am very conscious of the long list of reasons for sexual care orders in Schedule 3. I am slightly surprised that they are within the scope of the Bill.
Like other noble Lords, I have difficulty with voyeuristic sex—I hope that that sentence will not be misinterpreted. I refer to sexual activity in public as defined in Clause 74. We are told that subsection (2) is designed to cover cases where a person engages in sexual activity in a place which, in itself, may not be public, but where the activity can be seen from a public place. I can envisage two crimes being committed: one 799 by the person having sex, and the other by the person observing it. An example might be sitting at one's window or walking down the street and seeing a couple having sex. That is even more nonsensical when we look at the Explanatory Notes and discover that it is not intended to cover a situation in someone's bedroom with the window curtains open. I was rather surprised that I find myself sharing with the noble Lord, Lord Alli, the thought that we may be old-fashioned, but that we have both always believed that an Englishman's home is his castle, which includes his garden.
There is another inconsistency here. I note that the offence is of specified activities in a public place that can be seen by another person. We discovered that that means that an offence will not be committed in a public lavatory if the act in question takes place in a cubicle with the door shut. That is very strange: surely, a cubicle is part of the public place, which itself is the public lavatory. Like my noble friend Lady Noakes, I find that totally unacceptable. I imagine that very few of your Lordships have not taken a child into a public lavatory. It would be a very incurious child indeed who did not ask why two persons of the same sex were going into the same cubicle. I cannot imagine that many of us would answer with the truth. Why should the law put us in the invidious position of lying to a child? That is what this proposal amounts to.
This Bill is very comprehensive. There is no point in my going through it clause by clause at Second Reading: indeed, your Lordships would hardly welcome it. The House would not appreciate it at all. But it should be clear from what I have said that I find it, in part at least, like the curate's egg.
§ 12.52 p.m.
Lord Carlile of Berriew
My Lords, like other noble Lords, I welcome the opportunity given by the Government for comprehensive legislation on such serious business as the reform of sexual offences. It is a confident Government and a brave Parliament that seek to define so fundamental a word as "sexual", as we seek to do in Clause 80 of the Bill. I hope that in so doing, and in the other provisions of this Bill, we send out a message to society rather than a hostage to fortune and a huge raft of defining cases in the courts.
I do hope, too, that what emerges as a result of this process can be seen as part of the codification of the criminal law. I hope that the Government have not lost sight of the work that the Law Commission has done in an effort to codify the criminal law so that it can be seen in a single corpus, readily accessible to all.
Some parts of this Bill are especially welcome to me. I join the noble Lord, Lord Alli, in the welcome that UNICEF UK has given to Clauses 61 to 64 of the Bill. They introduce the international obligations which this country has to deal with trafficking into, within and out of the UK for sexual exploitation of people. I join UNICEF in inviting the Minister and the Government to consider introducing more severe maximum penalties where the victim of trafficking is a child and therefore protected by the United Nations Convention on the Rights of the Child.
800 In that context I hope, too, that non-statutory measures can be announced by the Government in due course to improve care facilities for those who are found to have arrived in this country as victims of sexual trafficking. I hope, too—and this is extremely important—that very detailed and careful training will be given to port officers wherever they may be, so that they are better able at ports of entry to identify potential victims.
I turn next to another matter to which I give great welcome. It relates to transsexual people; that is to say, those who have undergone gender reassignment treatment and are living in their post-treatment gender and those who are undergoing that very difficult process. I have campaigned with that group for almost 20 years. On one occasion I introduced a Private Member's Bill into another place on the rights of transsexuals. At that time the issue was regarded as risible. I am very glad to see that it is now recognised as a serious medical, biological and legal issue.
Clause 81(3) is a very short, but important change. It recognises that the bodies and the sexual rights of transsexuals deserve the same protection as the rest of the population. I express the hope that Clause 81(3) is merely part of the momentum towards full rights enfranchisement of transsexuals.
I particularly welcome Clause 80, to which I referred earlier. It seeks to define the word "sexual". Many years ago, my noble friend Lord Thomas of Gresford and I appeared on opposite sides in your Lordships' House in a case which turned on whether it was indecent assault for a shop assistant to smack the bottom of a young girl whom he thought had been shoplifting. It turned on the use by the defendant, when arrested, of the phrase, "Buttock fetish, officer, I think". How was a jury to approach an equivocal act which could be shown as sexual only by evidence extraneous to the act itself? I believe that Clause 80 clarifies that. I should be grateful, however, if somebody could write to me to explain a small puzzle in the use of the words "at least" in brackets in Clause 80(a).
I turn now to a matter of very real concern, which has been referred to by a number of noble Lords; namely, the issue of rape and consent. I very much respect the views of the noble Baroness, Lady Gould, as I hope she will respect mine. This is a very difficult issue indeed to address. It will be one of the most important matters to emerge from the debates in this House. I suspect that, ultimately, we may, by amendment, reach a consensus.
One starts with diffidence as a man by saying that there can be no greater violation of a person, female or male, than the non-consensual penetration of their body for sexual purposes. However, I would respectfully caution this House against an effort to increase the rate of conviction of the guilty if a consequence is an increase in the rate of conviction of the innocent.
Those who lie in wait and then rape deserve the most severe penalties. Those who win trust, whether by authority or by friendship, and then abuse it, deserve strong deterrent penalties. However, in our criminal 801 law in normal circumstances, and most especially where the sentence could be imprisonment for life, in my view there should be two elements prior to conviction. The first is an act properly characterised as criminal. The second is a state of mind of such a quality that, taken with the act, the sum of both can properly be regarded as a crime.
I am a simpler and coarser fellow than my noble friend Lord Thomas of Gresford so I hope that I will be forgiven for my more simplistic approach to this issue by the use of an illustration or example. My concern is best illustrated by reference to mental illness. I declare an interest here as vice-chairman of a small Welsh charity called Rekindle and also as a patron of No Panic, both mental health charities. I have also had the misfortune to observe mental illness at extremely close quarters.
As a result of care in the community there are many people living far better and happier lives now than they did in the institutions in which formerly they lived. They work, vote, clothe, shop and feed themselves and they live within our society. They are exposed, of course, to everyday sexual attraction. Occasionally, some find a dislocation between their sense of reason and their sense to reason. Some occasionally rationalise what they perceive to be relationships in inappropriate ways. There have been cases before the courts where in particular men in that situation forced themselves on women when they honestly if irrationally, believed that there was consent, but there was not.
Under the new provisions concerning rape and related offences, such a person would probably be guilty of rape. I am not certain that they would be because of the use of the concept of reasonableness. My noble friend Lord Thomas of Gresford referred earlier to reasonableness in provocation in murder cases. Your Lordships' House has in that context introduced additions to that word reasonableness by importing characteristics to the reasonable person who is being considered by the jury. Will we be talking about the objective, reasonable man or woman standing at Lord Alli's bus stop, if he will forgive me for referring to that again, or will we, for example, be referring to the reasonable paranoid schizophrenic living in society or suffering from a very severe depressive illness?
What is a reasonable person? This is a genuinely difficult question. The fundamental issue is whether it is appropriate to convict of rape a person who believed with complete honesty, though mistakenly, that there was consent. My answer is "no"; the answer of the noble Baroness, Lady Gould, is "yes". I look forward to the important debate on that issue.
Of course, as the noble Baroness said, the act remains just as terrible for the victim, but it may be that the criminal law is not appropriate to every single perpetrator of such an act. It seems to me, for the time being at least, that Section 1(2) of the Sexual Offences (Amendment) Act 1976 strikes a fairer balance.
802 I, too, am concerned, as is my noble friend Lord Thomas, about the directions which will be given to a jury. Those of us who occasionally still give directions to juries in the Crown Court have enough difficulty with specimen directions such as those on self-defence in cases of violence or adverse inferences to be drawn from silence in a police station. As did my noble friend Lord Thomas, though separately, I considered the kind of specimen direction I would give in a rape case if this Bill becomes law in its present form. It is difficult and confusing.
I hope that before the Bill reaches its final stages the Government will consult carefully with the Judicial Studies Board, and particularly with the two circuit judges who prepare the specimen directions and are involved in everyday court work.
I turn now to one final matter—that is, Clause 74, which relates to sexual activity in public. For me—and this has absolutely nothing to do with prejudice against gay people, straight people or any other people—public lavatories should be sex-free zones. I do not want to hear people moaning and groaning in a cubicle when I take my grandson into a public lavatory to use it for the purpose for which it was designed. I am glad to hear that the Minister and the Government are open to discussion and persuasion on this matter and I look forward to a change in the Bill in due course. I invite the Government to reconsider very carefully that narrow issue.
There are no less comfortable bed fellows than sexual morality and the criminal courts. I hope that Parliament will be given the time to produce a statute that will endure and achieve the almost impossible balance between morality and utility.
§ 1.2 p.m.
§ Baroness Thornton
My Lords, I declare an interest through my long association with NCH, the children's charity. I thank that body, other major children's charities, ISPA, and other organisations for their helpful briefings prior to the debate.
I am pleased to be able to speak in the debate and to welcome the Bill, both because of the way in which it will modernise the law relating to sexual offences in general and, in particular, because of the way in which it will modernise the laws relating to sexual offences against or involving children.
The use of the word "modernise" is singularly apt in this context, not least in relation to the various clauses which seek to deal with some of the consequences of the development of the Internet as a mass consumer product in our society. In the remainder of my speech I intend to focus on two of those consequences, expanding in many ways on the remarks of my noble friend Lady Gould.
The issue I wish to speak to first is dealt with in Clause 17, which, as many noble Lords said, creates the new offence of "grooming". It is unfortunate that we have not been able to find a better word to describe the kind of conduct that the clause addresses. But anyone who saw James Westhead's excellent piece on "BBC News" last week will have been left in no doubt 803 about the very real dangers that children can face through their use of Internet chat rooms and the existence of a class of adults, a kind of person, who has a sexual interest in children and who, knowing how popular Internet chat rooms are with children, entirely cynically, goes to them expressly to find perhaps the vulnerable, the naïve, the unwordly child, the innocent child.
Typically the adult will present himself as being only a year or two older than the child he is targeting. These people can be very adept at communicating with children. They will know all about the latest bands and groups, films and fashions, who is in, who is out, what is cool and what is yesterday. They are willing to spend weeks, months, even longer, developing a relationship with the child through a chat room. Again, typically, they will try to persuade the child to keep their communications a secret, not to tell parents or to keep any records of their e-mails to each other. In the end, their aim is to engineer a real-world meeting with the child where the child will then be at great risk.
As my noble friend Lady Gould said, we know of at least 16 or so instances in the UK where children have gone to such meetings and have been raped. We know about them because in each case the men responsible were caught, convicted and sent to prison. We do not, of course, know about those cases that went unreported, or where the police were unable to bring a prosecution for want of evidence, but we can be fairly certain that they significantly exceed 16.
In Mr Westhead's's piece we were told that over a period of two weeks his investigator, who posed as a 14 year-old girl—this one child in a single local chat room—was approached by no fewer than 30 different people. In that instance, the person who finally turned up to meet the 14 year-old girl, and who had to be released without charge, was indeed an older man. He admitted to the BBC reporter, on television, that he had been seeking improper relations with the child.
This brings us to why the new clause is so important. Because of case law, at the moment the only power the police have to make an arrest in such circumstances is under the existing laws of attempt. If the police are to intervene and make an arrest for an attempt to have unlawful sex with a minor, the would-be perpetrator more or less has to have his hand on the child and very obviously be about to commit an illegal sexual act. I say that is wrong. Surely we must be able to intervene much earlier in the process and prevent the child and the adult having to get into such close physical proximity.
It is very likely also that, within the so-called grooming process, the child will already have been damaged and psychologically abused by the adult. It is absolutely wrong to have to insist that the child is once again put in harm's way, to risk the child being further traumatised, by having to go to meet the potential rapist in real life and allowing him to get close enough to the point where a sexual offence is about to be committed. At present those are the only circumstances in which an offence is committed.
804 The question we must ask—a question I would address to Liberty—is why would an adult go into an Internet chat room, strike up or engineer a relationship with a legal minor, someone he knows to be a child, and then arrange to meet that child alone and in secret without the child's parents knowing or giving permission? Let us be clear: these are exactly the kind of situations that the clause is intended to address. Any child who went to such a meeting would be putting himself or herself in great danger. While I am aware that many meetings have been arranged via Internet chat rooms that have not resulted in catastrophe, here we are talking about a very specific type of meeting: we are not talking about children arranging to meet other children but about adults arranging to meet children.
If an adult had a good reason for wanting to meet a child in real life, a child whom he had first met on line, there is a perfectly straightforward way of doing so. He should ask the child to get his or her parent or carer to talk to him and then insist that the parent or carer comes along, at least to the initial meeting. If any adult does not do that or, on the contrary, suggests that the discussion between them be kept secret and that the child should come alone to the meeting or accompanied only by another child, then we are entitled to be gravely anxious.
That is exactly the kind of evidence that will be required to justify an arrest and a charge under this clause. The necessary evidence could be obtained in a variety of ways but, typically, I imagine that it will be obtained by the child's parents, who have perhaps noticed that their child is starting to behave in an uncharacteristic way. The child is perhaps spending a more than usual amount of time online and so parents start to take a closer interest in whom their child is communicating with. Adults who use the Internet must know that, once this clause becomes law, they will have to be careful about how they deal with children online. They must know that society is no longer willing to tolerate the risks inherent in such meetings.
Many parents have successfully been able to get the message across to their children about real world "stranger danger". They probably learnt it from their parents, as I did from mine. But there is not the same collective knowledge or experience of these matters in relation to the Internet because it is new and because it is often overlaid with a technological language and culture that may have escaped many parents. However, a number of technical tools are available, as well as educational programmes produced by organisations such as NCH Action for Children and other children's charities, which are distributed through schools and through good and responsible computer suppliers. They can alert people to these new kinds of virtual stranger danger and help to keep children safe online.
I have one more small query about the proposed offence. I note that the police will have the power of arrest only if the meeting—and hence the offence—is scheduled to take place in England, Wales or Northern Ireland. That begs the question: what about the rest of the world? In two identical cases with exactly the same 805 evidence, the police will be able to step in and stop a meeting in England, Wales or Northern Ireland, but elsewhere they would not. As the whole point of the new offence is to empower the police to stop such meetings taking place, why should it matter where they are ultimately destined to take place? If the police have the evidence in England relating to an offence that is arrestable in England, the English police should step in and save the child in whatever jurisdiction he or she may reside, be it Scotland, France or Thailand.
Child pornography and the matter of consent is principally dealt with in Clauses 52 and 55. These and related clauses make it illegal for anyone under 18 to give their consent to take part in commercial pornography. However, they also make it possible for a child of 16 or 17 to give their consent to taking part in pornographic pictures that are presumably for noncommercial purposes. Another clause says that pornographic images of 16 or 17 year-olds that were made before the commencement of the Act will remain legal.
Unless I have misread the provisions, they are beginning to look like a bit of a muddle. How are the police—or anyone else—to know when an image was made? Surely we should have one rule that says it is illegal for anyone to be involved in making, distributing or possessing any indecent image of anyone who appears to be a legal minor, which covers anyone who appears to be under 18. That would bring us fully into line with the United Nations Convention on the Rights of the Child and make everyone's life a great deal easier. It would not involve any retrospection. We would simply be saying that from a forward date such images will be illegal and therefore anyone who might possess them should now get rid of them.
The distinction between commercial and noncommercial pornography is essentially a fiction these days. To put it another way, it is largely theoretical and in no way relates to the new realities of the digital age. Once an image has been made it is a matter of moments for it to be scanned or digitized. Once it is digitised, the chances that it will find its way on to the Internet must be very high, as one or two famous Hollywood actresses can testify. Once an image is on the Internet it becomes, in effect, a permanent record—in this case of the abuse of that child. That image could haunt them for rest of their life and could keep intruding into their life or be used against them by people who wish to harm them. Moreover, once on the Internet, such an image would very quickly find its way into the hands of those who trade in such images commercially. Even if it was not commercial at the beginning, it would quickly become so. Does that then make it an illegal image? If so, who has committed the crime and when?
At the least, a decision about whether a person can legally take part in the production of pornography should in all circumstances be limited to a person who is a legal adult. This also recognises that some young people at the age of 16 or 17 can be involved in essentially abusive, if legal, relationships with much older people 806 who, in effect, can coerce them into things that, at a slightly older age with more mature judgment, they would not agree to.
I have a number of other minor points on which I would like further clarification, but these can wait until Committee. In the meantime, I must say how welcome the measure is. I pay tribute to the many people and organisations involved in the Setting the Boundaries review and in the Home Office Internet taskforce. Between them, they have produced an excellent and much needed Bill.
§ 1.14 p.m.
§ Baroness Finlay of Llandaff
My Lords, I welcome many parts of the Bill. As someone who has been involved in trying to obtain prosecution of professionals who were abusing vulnerable mentally incapacitated adults and the elderly, I fear that the police may still have an uphill struggle to prove in court when an offence has occurred, despite the clarification of this Bill.
The devil is in the detail. I shall focus briefly on sexual addiction, non-consensual sex and sexual offending and the links between them. It is alarming that just under 3 per cent of men in the population report nonconsensual sexual experience as adults and more than 5 per cent of men report non-consensual sexual experiences having occurred when they were children. In a survey from the United States, between 3 and 6 per cent of adults were deemed to have had sexual addiction, which is specifically defined. Like any other addiction, there is euphoria associated with arousal and the chemical endorphin in the brain which is linked with that. What is sex addiction? It involves compulsivity, continuation despite adverse consequences with risks escalating with time, preoccupation and obsession with obtaining a sexual experience and the person initially denying or minimising the problem. Unfortunately, there is a progression from addiction through increased risk to a range of increasingly dangerous behaviour to maintain the euphoric effect. Sexual addiction is often initially exhibited as multiple extra-marital affairs. Those in a position of power may also abuse that power to gain sexual access. There is the use of prostitutes, sexual massage, indecent phone calls, cyber sex and so on. There are also multiple anonymous sexual encounters, such as in toilets. That explains the inherent abhorrence of the permission in the Bill for sexual activity behind locked doors in public toilets.
The majority of sex addicts come from dysfunctional families. Over 80 per cent of them reported having a rigid or disengaged family and lacking emotional support. There was a family history of addiction to alcohol and drugs in about 80 per cent. The same percentage had been sexually abused; of the males, 3 per cent by their fathers and 11 per cent by their mothers. Some 70 per cent had been physically abused and over 95 per cent reported emotional abuse. Fewer than a fifth of sex addicts have no other addictive behaviours. Those behaviours include chemical dependency, alcohol, workaholism, eating disorders and gambling.
807 Society must give a different message. Currently men and women are objectified. Society provides services to sex addicts. Women are used as sex objects in pornography, but they also feature on page 3 of newspapers and in advertising for products such as alcohol. All this gives the message that sex is the answer to many problems. That can be the beginning of a slippery slope. The noble Baroness, Lady Gould of Potternewton, hit the nail on the head when she said that we must educate in sexual health, healthy relationships and the spirituality of self.
Rigidity in attitude will worsen the addiction as it replicates the dysfunctional family from which the sex addict has come. It will not decrease the amount of deviant sexual behaviour.
About 55 per cent of sex offenders are diagnosable as sex addicts. Child molesters are the largest group here—71 per cent of them are diagnosable as sex addicts.
Some sex offenders cannot be rehabilitated. They must be incarcerated to protect society. However, similar to the concerns raised by the noble Lord, Lord Carlile of Berriew, I fear that failure to respond to the addictive features of offenders may worsen the situation. Addictive sexual disorders play a role in over half of all sex offences.
The intent of sexually addicted and non-sexually addicted sex offenders differs. Non-addicted sex offenders consciously attempt to inflict pain, do harm, deceive and attack and they are often driven by hatred, rage, anger and distorted emotions.
Sex addicts who are also sex offenders are motivated by an attempt to use others for self-gratification and escape loneliness, shame and low self-esteem, denying the exploitative features and the harm or pain that they inflict. A failure to respond to the addictive features of sex offenders may add unnecessary risk of recidivism and reoffending. Punishment alone may increase shame and self-hatred and the prisoner's assault potential. The offender treated abusively will only be taught further abuse. Sex offenders are responsible and accountable for their acts, but rehabilitation must be considered, particularly in the early stages.
Sex addicts are around us in society. Public lavatories should not be safe havens for unsafe and dangerous behaviour. Many aspects of society must alter to decrease sex abuse, if the ongoing stream of new sexual offenders is to be dealt with. The Bill rightly addresses the extreme vulnerability of those in positions of care for whatever reason. Those in positions of trust are just as likely to be potential offenders, whether in full-time or temporary positions. The noble Baroness, Lady Blatch, highlighted such a loophole.
The law must encourage healthy sexuality and decrease harmful sexual behaviour overall, and not simply focus on the worst end of the spectrum when the offence occurs.
§ 1.21 p.m.
§ Baroness Gibson of Market Rasen
My Lords, this is an extremely important Bill, and overall I greatly 808 welcome it. It tackles some issues that have been ignored or avoided for too long. None of the issues in the Bill is particularly pleasant to debate, but there is an increasing need to discuss them in a reasonable and rational way, so that victims of such offences can be protected and the law clarified and strengthened.
I want to concentrate on three parts of the Bill, before asking my noble and learned friend a few questions. First, while recognising the complexities involved, I welcome the tightening up of the law surrounding rape. As the noble Lord, Lord Carlile, recognised, rape is among the worst nightmares that women, young or old, can face. It is the ultimate expression of power of one person over another, and invariably destroys the confidence and distorts the lifestyle of the victim—at the least for a matter of months and, at most, for much of their lives. One has only to talk to rape victims and to work with rape crisis centres to know that that is so.
I am pleased to say that most police forces have changed dramatically in their attitude to rape victims in recent years. Women now report that their claims of rape are taken seriously and acted on. However, as we have seen today, there remain questions about the word "consent", which is something that the Bill tackles. There will be much debate on the matter, and rightly so, but I would say that the old adage, that when a woman says "No" she really means "Yes", can no longer be tolerated, whether it comes in the form of a sad comedian's list of "jokes" or as evidence in a court case. The defence of, "I thought she had consented, I made a mistake", is thrown out by the Bill, and not before time. Such a "mistake" has created a living hell for too many women over the years. I entirely support my noble friend Lady Gould on that matter.
Secondly, I turn to the clauses dealing with sex offences in relation to people with learning difficulties, who are often extremely vulnerable but have the same rights to protection against sexual abuse as everyone else. I became aware of that matter in stark detail when I began work on the Dignity at Work Bill that I introduced into this House last year. It actually covered bullying, but many other issues were raised, including abuse at work. Several of the accounts that I received covered people with disabilities, including learning difficulties. Those were among the most horrible to read about. Abuse by co-workers, by those in more senior positions and by those who care for people with disabilities were all cited in the submissions.
According to Turning Point, a large social care charity that provides services for those with disabilities, including learning disabilities, people with such disabilities are twice as likely to be victims of crime as other people. The incidence of abuse surrounding sex offences is four times higher than in the non-disabled population. The Bill aims to give an unequivocal message: the most vulnerable have the same rights in law as everyone else. I am sure that my noble and learned friend will take into account the points raised so ably and movingly by the noble Lord, Lord Rix, earlier in the debate.
809 The third area of the Bill that I greatly welcome can be found in Clauses 61 to 64, which cover trafficking for sexual exploitation. It is a topical issue, about which the police are greatly concerned. In my work on Sub-Committee F, considering issues surrounding illegal immigration, that matter has loomed large.
In countries where there is little chance for children or young people to gain educational qualifications, meaningful employment or even to have enough to live on, the opportunity to travel to a new future is obviously an enticement. However, it all too often turns out to be an enticement to working illegally in a brothel in the back streets of one of our largest cities or towns with no hope for the victim of anything but a life of degradation and despair. That may start at a very young age indeed. Fathers, brothers, boyfriends and neighbours may be involved in the trafficking, as, sadly, may women acquaintances and relations. Those involved in trying to stop such obnoxious trading acknowledge that they are touching only the tip of the iceberg. The Bill should assist their efforts.
Having so far praised the Bill, I turn to questioning parts of it. Clause 14 addresses sex offences carried out by children or young people and recognises that children need protection from other children and young people as well as from adults. However, there is no reference to any assessment or treatment services in relation to those offences. Without them, the needs of those who display signs that they could be harmful to other children are not being addressed. Surely, such assessment and treatment should be considered.
I welcome the parts of the Bill relating to trafficking, but will there be resources to help the victims of trafficking? That seems vital when they are finally able to escape from the sordid activities for which they were brought to this country.
Lastly, I turn to our old friend, Clause 74. Many comments have already been made on the clause, and I am pleased that my noble and learned friend will reconsider it. However, I find the clause and Explanatory Notes muddled as written and in intent. I raise two of the difficulties that I have with the clause and the Explanatory Notes.
Presumably, the clause is in the Bill because some sexual activities in public places may upset members of the public. If that is so, those who would be upset by witnessing the touching of the genital parts of a naked body would also be upset by the touching of genitals through clothing, yet the Bill allows the latter. The Explanatory Notes state that the clause makes illegal sex in a garden into which people can see but not sex in a bedroom that has the curtains open, into which people can also see. Like other noble Lords, I cannot understand the logic of that, and I am pleased to hear that the clause will be amended.
§ Moved accordingly and, on Question, Motion agreed to.
§ Moved accordingly and, on Question, Motion agreed to.
§ [The Sitting was suspended from 1.29 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]