APPENDIX 20
Memorandum submitted by The Lesbian and
Gay Christian Movement (LGCM)
INTRODUCTION
1. LGCM has around 4,000 national, local
and denominational members. Our aims are:
(a) To encourage fellowship, friendship
and support among individual lesbian and gay Christians through
prayer, study and action, wherever possible in local groups, and
especially to support those lesbian and gay Christians subject
to discrimination.
(b) To help the whole Church re-examine
its understanding of human sexuality, and to work for a positive
acceptance of lesbian and gay relationships within the framework
of the Statement of Conviction . . . i.e. Conviction . . . so
that all homosexuals may be able to live without fear of rejection
or recrimination, and that lesbian and gay Christians may be able
to contribute fully to the life and ministry of the Church.
(c) To encourage members to bear witness
to their Christian faith and experience within the lesbian and
gay community, and to witness to their convictions about human
sexuality within the Church.
(d) To maintain and strengthen links with
other lesbian and gay Christian groups, both in Britain and elsewhere.
2. LGCM membership is open to all Christians,
whatever their denomination or sexual orientation, who support
our Statement of Conviction.
Statement of Conviction
"It is the conviction of the members of
the Lesbian and Gay Christian Movement that human sexuality in
all its richness is a gift of God gladly to be accepted, enjoyed
and honoured as a way of both expressing and growing in love,
in accordance with the life and teaching of Jesus Christ. Therefore
it is their conviction that it is entirely compatible with the
Christian faith not only to love another person of the same sex
but also to express that love fully in a personal sexual relationship."
3. LGCM submitted views jointly with Christians
for Human Rights (CHR) in response to "Setting the Boundaries".
For lack of time, we have not again been able to consult CHR,
but many of the points below are based on our earlier memorandum.
4. In our comments below on the Bill, we
focus not only on those questions which may still be particularly
relevant to lesbian and gay people, but also those which may raise
points of practice, principle or detail relevant to all citizens.
Given the deadline for comments, we have examined the Bill in
the form in which it was introduced to the Lords, without taking
account of any amendments that may be made in that House.
GENERAL
5. LGCM welcomes the gender-neutral structure
of the Bill and the abolition of discriminatory offences relating
only to same-sex activity. However, recalling our comments on
"Setting the Boundaries", we are concerned that reliance
is proposed too widely upon the test of what a "reasonable
person" may think. It could result, as "Setting the
Boundaries" noted, in a plain risk of same-sex behaviour
being more severely viewed than exactly similar different-sex
behaviour. But the "reasonable person" test is also
deficient as too subjective. Wherever possible it should be replaced
by tighter objective wording. Examples are immediately below.
DEFINITIONS OF
"SEXUAL ACTIVITY"
AND "SEXUAL
TOUCHING" (CLAUSES
80 AND 111)
6. Sexual activity. The definition goes
beyond penetration and touching to include "any other activity"
which "a reasonable person" considers "may"
be sexual, and "would" consider sexual because of "its
nature", "its circumstances", "or" the
purpose of "any person" in relation to it. It appears
from what is said in the Explanatory Notes that the draftsmen
have in mind activities such as getting a child to undress, or
to masturbate, for the gratification of the instigator or a third
party. But "any other activity" runs far beyond these.
It clearly includes "come hither" looks, "chatting
up", and kissing. The result would be that, for instance,
in a club frequented by teenagers, some over and some under 16,
the law (eg. Clauses 9-12 and elsewhere) would be constantly broken.
Indeed, under Clause 12 two people over 18 might be kissing (plainly
a "sexual activity") with under-16s present, without
any intention to involve them in any way, but would thus be committing
an offence. This goes too far. Moreover, it seems to conflict
with Clause 74(3).
7. Sexual touching. Again, Clause 80 leaves
this to the test of the "reasonable person". However,
in Clause 74(3)(c) and (d) it is defined strictly by reference
to the genitals or anus (though under that Clause they have to
be uncovered). There are many "touchy-feely" people
who habitually put an arm on someone else's shoulder, or a hand
on their hand, or give them a kiss. Sometimes this also reflects
the culture from which they come. Such conduct should not be put
in peril of the law, as judged subjectively by the "reasonable
person".
8. Accordingly, we recommend that "sexual
touching" be defined as "touching (B's) genitals, buttocks
or breasts, whether through clothing or not" (cf. Clause
71(2)(a)), and that "any other activity" be qualified
by adding "involving any other touching or unclothing of
the genitals, buttocks or breasts".
9. This leaves the problem of Rodin ("snogging").
Is it the Government's view that such kissing, if unwanted or
with a below-age child, should be regarded as an assault, and
if so how would they define it, and should it attract the same
penalties as other types of "sexual touching" as presently
defined? We note that no prohibition is proposed, under Clause
74, for such kissing in public.
THE MARRIAGE
EXCEPTIONS (CLAUSES
16, 25, 31, 49 ETC.)
10. Clause 16 frees married couples from
the penalties attracted by sex with children under 16 if the instigator
can prove lawful marriage. This therefore applies to anyone married
lawfully under another jurisdiction at an age below 16. The other
Clauses give similar exemptions.
11. Child marriage is a pernicious institution
which is contrary to the spirit of the UN Convention on the Rights
of the Child, and to the official policies, and sometimes the
laws, of several countries where it nevertheless is rife. We believe
there should be no exemptions from prosecution under the Bill
where the relevant child is under 13, whatever the law or cultural
practice in the state where the marriage took place.
12. But in addition the law needs, as a
matter of principle, to take full cognisance of same-sex marriages
and civil partnerships lawfully contracted in any other jurisdiction,
and the rights that they have created for the parties concerned.
Subject to the point above, all the marriage exemption Clauses
should be widened accordingly.
CONSENT (CLAUSES
77 AND 78)
13. We agree with the definition of "consent",
and think the rebuttable presumption approach embodied in Clause
78(1) is satisfactory. The ruling out of "past history"
as a defence, embodied in Clause 78(2), also seems to us right.
14. However, in relation to third party
"authorisation", no account has been taken of our point
that the betrothal of child minors, or indeed the arrangement
of adult marriages, should not be taken to validate consent by
the two parties primarily involved. Clause 78(5) and (6) should
be reviewed and if necessary revised accordingly.
CHILD SEX
OFFENCES
15. In our earlier memorandum, we and CHR
proposed that sex between an over-13 child and an adult should
not be prosecutable if there was less than three years (in the
case of penetration) or five (in other cases) in age difference
between the parties. We accept that this has not found favour
more generally, and therefore go along with the proposals in the
Bill.
SEXUAL ACTIVITY
IN THE
PRESENCE OF
A CHILD
(CLAUSE 12)
16. We have already referred to the "Rodin
problem". However, it looks as if the Clause would also put
at risk two spouses or partners making love at home or in a hotel
in the presence of one or more of their children (eg if they had
to share a bedroom). Is this intentional, and if so is it reasonable?
SEXUAL "GROOMING"
(CLAUSE 17)
17. This offence seems to depend solely
on proving the intention to commit an offence, and not its actual
commission. Travelling and arranging meetings are not themselves
unlawful, and intention is hard to prove. Moreover, intentions
can and do change (maybe even in the course of travel). Consequently,
we feel uneasily that individual human rights are here at risk,
at least with the present drafting.
FAMILY RELATIONSHIPS
(CLAUSE 30)
18. Cousins. The inclusion of cousins in
sub-clause (3)(c), taken with the definitions in sub-clause (5)(a)
and (b), means that, if the half-sister aunt or half-brother uncle
have previously or later had a child by another partner or spouse,
there will be practically no blood relationship present at all.
We doubt then whether the relationship should be proscribed at
all.
PERSONS WITH
A MENTAL
DISORDER OR
LEARNING DISABILITY
(CLAUSES 33-37)
19. Whereas "mental disorder"
is defined in Clause 81, "learning disability" is not,
and we think it should be.
20. In our earlier memorandum we were concerned
with the rights of those who might have some capacity to reason
as to the acts proposed, and to their possible exclusion from
all sexual enjoyment. We therefore suggested that there be a requirement
to show distress, disagreement or dissent, subsequent anxiety,
or other intensified mental or physical harm in relation to the
activity concerned. However, we are not experts in this field,
and would follow whatever those charities think best which are
so expert.
CARE WORKERS:
MARRIAGE EXCEPTION
(CLAUSES 43-47 AND
49)
21. Clause 49 does not appear to cover cases
where someone is married, or has a partnership, with another person
who develops or already has a disability.
INDECENT PHOTOGRAPHS
(CLAUSE 52)
22. Sub-clause (3) appears not to allow
for a 16 or 17 year old to consent to the showing of a photograph
taken by one parent to his other parent or his parent's spouse
or partner.
PROSTITUTION (CLAUSES
54FF)
23. We note that under Clause 60(4) a prostitute
is defined so as to include anyone who, on any single occasion,
freely provides sexual services from which someone receives personal
gain. This is a very wide definition indeed, and in one way we
congratulate the authorities on grasping the nettle of inducements
so firmly. But, in another, we think it important to have this
fully discussed so that it carries the consensus of the public.
It is so wide that it risks ignoring human nature. We suspect
that there would be greater acceptance of this proposal if "regularly"
were substituted for "on at least one occasion".
24. More generally, and given the whole
philosophy behind the Bill, we do not believe that an adult who
gives genuine consent (as defined in Clauses 77 and 78) should
be prevented from earning rewards from either prostitution or
taking part in pornography. This casts doubt on the wisdom of
Clause 56, though not of Clause 58, where the offence seems more
akin to the activity of pimps who "live off immoral earnings".
We are not sure how best to remedy this in the drafting, but some
way should be found to incorporate in the law the point in our
first sentence.
25. But there is another consequence flowing
from the wide wording. Many traditional forms of marriage involve
"gain" for some individual or individuals, especially
if "goodwill" is included (Clause 60(3) and (4)). In
India, although dowries are proscribed, they are almost always
paid to the bridegroom's family (or himself) to ensure a "satisfactory"
marriage for a girl. In much of Africa, payments are made by the
bridegroom to the bride's family. Technically, therefore, they
would be caught by these provisions, and the relevant individual
could be regarded as a "prostitute", with Clauses 56
and 58 coming into play. Accordingly we recommend an exception
clause relating to lawful marriages and civil partnerships. If
this were inserted, Clauses 61-63 would also be rendered harmless
for such cases.
ADULT PORNOGRAPHY
(CLAUSES 56, 58 AND
60-64)
26. It appears from the headings to Clauses
56 and 58, as contrasted with those for Clauses 55, 57 and 59
(which deal with children), that there is no intention to proscribe
actions involving the production of pornography by adults. However,
because of the wide drafting of Clause 60 (3) and (4), noted above,
the effect of these Clauses would, we think, be to outlaw the
production of all adult pornography (which clearly must involve
sexual activity for gain) either in Britain or abroad, since all
pornographic participation would be covered within the definition
of prostitution. Consequently, changes must be made in the Bill.
SEX WITH
AN ADULT
RELATIVE (CLAUSE
69)
27. The effect of sub-clause (1) appears
to be that it is not an offence for a 16-year old to have consensual
sex with a relative who is also 16 or 17. This seems anomalous.
EXPOSURE (CLAUSE
70)
28. This may not make full allowance for
those who are naturists or nudists. We take it that their views
will be sought on the provision.
VOYEURISM (CLAUSE
71)
29. We took the view earlier that this should
only be considered in the context of the whole law on privacy.
We see the case for proscribing unwanted two-way mirrors etc.,
but prying on activities which the occupants of a house have not
seen fit to obscure by curtains etc., and which are not themselves
illegal, eg by use of long-distance cameras, should surely not
be illegal either; or, if it is, why not also proscribe the taking
of unwanted pictures of a similar kind, not for the titillation
of the viewer himself, but for intended Press publication in newspapers
for the titillation of their readers?
SEXUAL ACTIVITY
IN PUBLIC
(CLAUSE 74)
30. In addition to the point about Clause
12 which we mention above, this Clause raises the issue of activities
in public lavatories. While LGCM has no wish to encourage these
activities (which by repute are often the resort of married or
bisexual men looking for anonymous relief) we think the question
whether they are public or private places is essentially a matter
of fact. Where a lavatory cubicle is fully enclosed (eg the walls
are tiled to the roof level) it would in our view probably be
private; where there were significant spaces at the top or bottom,
it would not.
31. It is not clear what evidence would
need to be called to prove an offence under this Clause. We consider
it important not to permit the recurrence of the practice of entrapment,
as was common with the offence of "persistent importuning".
We therefore reiterate that evidence should be required from the
member or members of the public who witnessed the alleged conduct.
February 2003
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