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A girl who has unlawful sexual intercourse committed against her when she is under 16 cannot be charged with the offence. At the end of the last century, the Tyrell case, which is quite well known in case law, showed that she could not be successfully prosecuted--even if she was the instigator--for aiding and abetting the offence. I consider that entirely appropriate: men, especially older men, must take responsibility for their actions, and must not be able to pass off age-of-consent offences as the responsibility of the younger party. It is vital for that anomaly to be removed. I use the word "vital" again for the benefit of the hon. Member for New Forest, West (Mr. Swayne).
In the Sutherland judgment, the European Commission of Human Rights said that part of the problem with British law was the provision whereby the younger party was
criminalised, and the effect of that criminalisation was disproportionate to whatever society wished to achieve. I think that both sides of the age-of-consent argument will agree that the anomaly must be removed, that we must decriminalise victims of the offence and that this is the right legislative opportunity for such a move. We can act now, in Committee, or at least at some point during the Bill's passage. That will achieve the Government's two aims, which--as both the Secretary of State and the Minister have eloquently conveyed--are equality and the protection of young people. I ask the Government at least to take on board an amendment such as this.
Mr. David Borrow (South Ribble):
Unlike my speech on Second Reading, this speech will be brief.
I support the amendment for a number of reasons. Since 1967, legislation on this subject has always started from the standpoint that any sexual activity between males is illegal and wrong; it has merely decriminalised activity in certain regards. It has never introduced an age of consent in the sense that is recognised in the case of heterosexual relationships. That applies to the Criminal Justice and Public Order Act 1994, and to this Bill. The amendment would introduce the protections for the younger party in consensual sex between someone below the age of consent and someone above that age that already exist for heterosexuals.
Twenty-odd years ago, I saw a booklet produced by the Campaign for Homosexual Equality, which dealt with the discrimination in the gamut of laws affecting gay men. The issue is complex, and I do not suggest that the Bill is necessarily the right way in which to put things right. I also realise that Ministers are conducting a sexual offences review, during which a number of the problems and anomalies will be examined. However, following the Euan Sutherland decision the Government promised to amend the law in two ways. That is why we are considering the Bill.
The first way in which the law needed to be amended related to the age at which it became an offence to engage in sexual activity. That is why we are equalising the age of consent at 16 in England and Wales and 17 in Northern Ireland. Secondly--this has not been referred to generally, although the hon. Member for Oxford, West and Abingdon (Dr. Harris) has referred to it--there was the penalising and criminalising of the person who is under the age of consent. It is essential that, if we are to respond properly to the Euan Sutherland judgment, we ensure that the Bill deals not only with the equalisation of the age of concept, but with the criminalisation of those under the age of consent. I will leave it there.
Mr. Andrew Rowe (Faversham and Mid-Kent):
I trespass into the minutiae of the discussion with some diffidence because, unlike the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for South Ribble (Mr. Borrow), I have not made a detailed study of the case law and the consequences thereof.
I have three points to make. The first is that there is a curious ambiguity around the word "consensual" The proper meaning of the word is that there is an equal readiness by both parties to indulge in the behaviour, yet there is an understandable and proper anxiety that, where one party is older than the other--and particularly where the younger one is below the age of 16--there is a serious
risk of pressure of varying forms being put on the younger one, so that, although the appearance is given of consent, in practice, it is a reluctant consent.
Mr. Borrow:
Given that there would be pressure by the older person on someone under the age of 16 to become involved in sex, does the hon. Gentleman recognise that criminalising the younger party in that relationship would make it less likely that he would feel able to report and to seek the protection of the legislation, and that he would be more likely not to report the offence because of the fear that he had committed a criminal offence and could be charged? Instead of protecting the younger person, the measure would make it more difficult for him to be protected.
Mr. Rowe:
The hon. Gentleman, perhaps inadvertently, tries to rush me through my remarks. I was going to move on to that matter. It is important to be clear that the term "consensual" carries within it the ambiguity that, where there is a disparity in age, the younger person may appear to have given consent, but, if he had been genuinely free to decide on his behaviour, might have refused that consent.
On my second point, I share the hon. Gentleman's view that to criminalise the younger party when he is under 16 for such behaviour--which allegedly was consensual, but may not have been--makes it harder for him to seek the protection and advice that we all wish to make available to him. That is the view of most of the professional counsellors and services working in the sector.
Mr. Swayne:
That view must be wrong then.
Mr. Rowe:
My hon. Friend has a cynical view of the professions. Sometimes he is not altogether unjustified, but if we are to proceed at all rationally, we have to allow that people who have devoted most of their working lives to assisting young people to work their way through the complexities and confusions of their sexual behaviour probably have a superior contribution to make; it is certainly superior to the one that I make. I am prepared to accept their view that criminalising the behaviour of the younger, perhaps reluctant, party does not help to solve the problem. Therefore, I have considerable sympathy with the amendment.
The third point is a more general one. It goes back to a debate that the Minister of State, Home Office had in front of what in those days, before the change of name, was called the all-party group for children. The group, of which I am an officer, believes strongly that girls below the age of consent who are engaged in prostitution should be regarded as victims of abuse and not as criminals in some conniving way. I very much hope that there will be a change in the law to that effect.
From time to time, the law has a useful declaratory purpose, but its interpretation is also important. Today's debate provides an opportunity to improve the law and I support the amendment. Police forces and prosecution services have become much more aware of the dangers of criminalising young people, and only a few prosecutions take place.
Finally, we talk rightly and properly about protecting young people from predatory behaviour by older people. Sadly, however, there is an increasing number of severely
damaged young people whose only recourse, when looking for excitement, comfort or whatever, is to try to seduce older people sexually. It is important to put on the record the fact that teachers and other adults are often put in a difficult position by young people to whom they are trying to extend care and affection when, because of the damage that they have endured during their young lives, their response is to try to titillate the older person into going too far. When we talk about protection, we should recognise that older people--particularly when the opportunity for blackmail or damaging someone's career is taken into account--need protection, too.
Mr. Swayne:
The hon. Member for Oxford, West and Abingdon (Dr. Harris) said that he chose his words carefully when he said that it was vital that the amendment should be carried so that the anomaly that he identified would be addressed. I shall use the same word. I think that it is vital that the anomaly should remain and I shall explain why.
I realise, that I am now treading on the subject matter of the debate on Second Reading, but I think that we should revisit the principles dealt with in both amendment No. 2 and the earlier debate. In the Second Reading debate, hon. Members on both sides of the House--although rather more Labour Members than Opposition Members--accepted the principle that one's sexual proclivity is fixed and determined, and that one can have no influence over it. I accept entirely the experiences described by Labour Members in supporting the principle. I do not dispute their experience, or say that they are wrong on the principle, but they painted an incomplete picture.
The experiences that were described in the earlier debate may be a valid description of the experience of some boys, whose sexual appetites and proclivities are fixed. Equally, I am aware of young men--young boys--under 16 who experience particular unnatural desires at a tender age, approaching 16, but are ashamed of those desires. They are appalled by their desires and repress them, and go on to outgrow them and live a perfectly normal life. They are ashamed and appalled by their desires because of the social pressures exerted by their peers, who say that it is not natural behaviour or something of which society approves.
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