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Mr. James Clappison (Hertsmere): This has so far been an interesting debate. I should make it clear now that my remarks are very much personal ones. For Opposition Members the matters dealt with in amendment No. 2--as with the other matters we have considered in the Bill--are, the subject of a free vote. My remarks are therefore only a personal contribution to the debate.
I make it clear that my approach to the amendments is guided by a wish to give the strongest protection possible to children and young people. I have judged the entirety of the Bill by that same criterion. As a background to the amendments, I should say that, although the Bill aims to protect youngsters of 16 and 17 from abuse of a position of trust by an older person, it is fast emerging, as we consider the Bill, that that protection is far from comprehensive, that it contains many loopholes and anomalies, and that it could go much further than it does. That is most true of youngsters under 16, who are the subject matter of amendment No. 2. The Bill and its provisions on abuse of trust do nothing at all for youngsters under 16.
In the previous debate, I listened carefully to the Minister's comments on wanting to protect vulnerable people. I join him in that wish, and shall certainly support him in any reasonable endeavours to realise it. However, he will have to face the fact that those under 16, who are most in need of protection--the younger the person concerned, the greater the need for protection--will receive no protection from the Bill's provision. That is the criterion by which I judge the amendments.
The Utting report forms the background to today's debate. That catalogue of abuse and misery--which was chronicled by hon. Members on Second Reading--predominantly concerned youngsters under 16. That is the background against which I set the debates on the amendments.
Will the amendments help to protect youngsters under 16? It is obvious that the Committee is moving towards 16 as the age of consent. I think that it is a mistake, that 18 is more appropriate and that 16 is far too young. However, we must be realistic. This is a serious matter--we are talking about protecting young people--and we must see the best that can be done in the circumstances.
When the Bill is enacted and 16 becomes the age of consent, sexual relationships involving youngsters under 16 will be unlawful, as they are now. As the law will then stand, it will be unlawful for a person over 16 to have a sexual relationship with someone under 16. As I understand it, where such a relationship takes place, both persons will be involved in the unlawful act.
The amendment proposes that, in such a case, no proceedings shall be commenced against the party who is under 16. The argument made by the amendment's
supporters is that the person under 16 should be regarded not as the perpetrator, but as a victim. I know that feelings run high on that matter, and it is perfectly possible to have strongly held and legitimate views on the subject. However, it is important to judge the position of the 16-year-old against the criterion that I set out at the beginning of my speech--the need to protect them from older people.
The argument from the amendment's supporters is that the removal of any prospect of criminal proceedings for the younger party will make it more likely that the criminal offence committed by the older party will come to light. As has been said, in such cases, the sexual relationship is consensual. If it is not consensual, that is an entirely different matter and other serious criminal charges will be involved. I appreciate the remarks of my hon. Friend the Member for New Forest, West (Mr. Swayne) about the nature of consensuality.
In cases where the younger party has been a consensual party in the activity, if he comes to realise that what happened was wrong and unlawful, he has to face the prospect that there is a theoretical risk of prosecution--something that may even be pointed out to him by the older party concerned. I say that there is a theoretical risk of prosecution because it would appear that, in such cases, the younger party is only rarely prosecuted, although the position is not entirely clear.
I am not sure how much we should weigh that fact in the balance. On the one hand, it could be said that there is no need to change the law as the amendment proposes because such prosecutions are hardly ever brought. On the other hand, there remains the possibility of prosecution, however remote it may be. We must ask whether it is good to have a law in place that is only rarely enforced. For someone under 16, even a theoretical risk of prosecution is something that that party must take into account and be influenced by. I suppose that, the more law-abiding the person concerned, the more they would take that risk into account.
I would like a strong, credible and well-enforced legal framework put in place to protect young people. I am extremely keen to protect young people from unlawful sexual activity, and anal intercourse in particular, involving older people, especially when the older person is substantially more mature and inclined to exploit the younger person's youth and inexperience. Sadly, there are such people around. For anyone over 16 to commit the offence with an under-16-year-old is a serious matter, but it is even more serious when the older person is perhaps 27, 32 or even in his 40s.
The hon. Member for Oxford, West and Abingdon(Dr. Harris) referred to the case of Tyrell and the well-established legal position in respect of under-16-year-old girls in the offence of unlawful sexual intercourse. I listened with interest to the Minister's remarks on that subject. The low maximum sentence of two years for unlawful sexual intercourse with a girl of under 16 is a glaring anomaly in our law that has been there for many years. I make no party point, as the anomaly remained under Conservative Governments as well as Labour.
The Minister's remarks had an especial poignancy for me, as I can remember having exactly the same debate in proceedings on the Crime and Disorder Bill. We put
exactly the same remarks to the Minister who was in charge of that Bill and he in many ways accepted the spirit of our point that two years was far too low.
Dr. Harris:
I saw the Minister nodding vigorously, as he did in Committee upstairs, at the suggestion that the maximum sentence of two years was too low; but one must be realistic. The offence is widespread, as we can see from the number of pregnancies, abortions and births among under-16-year-olds. If the hon. Gentleman is suggesting that we should lock up fathers--irresponsible and law-breaking as they may be--for up to five years, he may be going down a path that is the reverse of what we want to do.
Mr. Clappison:
Given that the law has become so anomalous, with a maximum sentence for indecent assault of 10 years and for unlawful sexual intercourse of only two years, it is hardly surprising that the law is not being as vigorously enforced as it might be. I think that the latter offence is a very serious matter, especially when the older person is much more mature and experienced and is taking advantage of the girl in exactly the way that I have described someone taking advantage of a boy.
The Minister's predecessor said almost a year ago that there would be a review of the law on unlawful sexual intercourse and that the Government would put it right but that they needed to consider everything in the round and consult the experts. Here we are, a year later, having the same debate, and the law has not changed.
We have to explore the matter with some care. It is my understanding that the amendment differs from the position established by the Tyrell case. Tyrell established that a girl under 16 commits no offence, whereas the amendment establishes that no proceedings should be brought. I do no more than note that there is a difference between those two positions. We need to be clear how the proposal fits in with other types of sexual offences.
It would appear that, even if the amendment were accepted, two youngsters who were both below the age of consent would still be liable to face proceedings. That is important, and we need to preserve that position. There should be no question of our moving towards a de facto reduction in the age of consent below 16. We should be concerned about protecting the younger person from abuse by the older person. The law in respect of unlawful sexual intercourse with under-16-year-olds needs to remain in place. The protection aspect needs to be borne in mind when we consider anal intercourse between someone under and someone over 16 years of age.
We need to be able to deal with every case, and we must think carefully about some of the rare and unusual circumstances that might arise.
Mr. Swayne:
Has not my hon. Friend raised the possibility of a rare and unusual case in which there would be an incentive for a young man under the age of 16, who was seeking to explore his homosexual desires, to select a partner over the age of 16? He would then be absolved from any wrongdoing, whereas, if he selected someone who, like him, was under 16, he would be committing an illegal act.
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