Mr. Malins: I welcome what the Minister and the hon. and learned Member for Redcar have said. We have had a useful discussion. I do not think that the Minister or the hon. and learned Lady think that I take a view about different classes of rape. I have already made my views on the severity of the crime clear. I am glad to have identified an issue—I think that we all understand that it is an issue—and to have heard a compelling and helpful response. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 ordered to stand part of the Bill.
Assault by penetration
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 39, in
clause 3, page 2, line 6, leave out paragraph (b).
Clause 3 raises a potential difficulty, which is why I drafted amendment No. 39 for the consideration of the Committee. The clause covers assault by penetration and is linked, in terms of gravity, to clause 4, which relates to sexual assault, which is, effectively, touching. Clause 3, however, is very specific. It relates to someone intentionally penetrating
''the vagina or anus of another person . . . with a part of his body or anything else''—
an object. The clause goes on to state that an offence is committed if ''the penetration is sexual'', B ''does not consent'' to it and
''A does not reasonably believe that B consents.''
It goes on to deal with reasonableness, belief and the presumptions.
My concern is that, when one is dealing with a sexual assault by touching, it is clearly highly relevant whether there is a sexual motive for the action. It may be innocent touching, as opposed to, to use the words
Column Number: 047
of the hon. and learned Member for Redcar, a grope in a public place. However, I was a little puzzled as to why, when dealing with assault by penetration, it should be necessary for there to be a sexual element to the offence at all. After all, if someone carries out such an assault without the consent of the person concerned, that is a serious matter. It may constitute in some circumstances an offence of actual bodily harm or grievous bodily harm, but there is clearly an intention in the Bill to highlight and to deal with it as a specific offence. Why is there the need to say, in such cases, that the penetration has to be sexual?
Under clause 79, the definitions clause, we will be asking a jury to decide whether a reasonable person would consider whether the penetration was sexual. Under that clause,
''a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.''
I understand exactly why that question has to be asked for clause 4, but why does it have to be asked at all for clause 3? Surely the real nub of clause 3 is that the activity takes place without, to use those old phrases, lawful authority or a reasonable excuse. If that is the case, why are we including the requirement that penetration should be considered to be sexual?
I appreciate that in the vast majority of cases that may appear to be an exercise in semantics, but seeing as we wish to show our absolute abhorrence at such activities taking place without consent, outside of medical necessity or, possibly, a lawful search—I have read the notes and appreciate the points that need to be covered—why are we requiring the jury even to consider the question at all? If we said, ''Members of the jury, you might conclude that the reasons behind this extraordinary assault had no sexual element to them at all but were mere violence'', as I read it, that jury could be faced with the bizarre circumstance of having to acquit for the offence. I therefore ask whether that definition should be in subsection (1)(b).
Under clause stand part we shall come to another point for which I have not tabled an amendment, but to which I shall return. The matter that I have raised seems to be small, but I am seeking to improve the legislation, not to put a spanner in the works in some way. Really, the motive, and motivation, of someone who thrusts an object into another person's anus or vagina seems to be entirely irrelevant if that is an unlawful act because there is not a proper reason—an excuse or a lawful authority—for doing it. In those circumstances, why is there the necessity of the jury being satisfied of a sexual motive? Of all the imponderables in life, one of the greatest is reading someone's mind or actions. That is not necessarily easy. I think that we are here giving the jury a hurdle that, in this context, is completely unnecessary.
Beverley Hughes: I have some sympathy with the arguments that the hon. Gentleman has advanced. I asked many of the same questions when considering the reasons why the clause is worded as it is. The answer is partly technical. This Bill deals with sexual offences and we must ensure that the offences that we are discussing and legislating for come appropriately within the Bill's scope. That point is important,
Column Number: 048
although it is technical and does not wholly address the other points that the hon. Gentleman made, and with which I shall try to deal.
The amendment—I understand the supporting arguments—would bring all forms of non-consensual penetration within the scope of the offence. It is very difficult to imagine an offence where somebody's anus or vagina is penetrated with an object not being sexual. In discussions with officials, I was reassured that the guidance issued to the Crown Prosecution Service and the way in which the Crown Prosecution Service would apply the charges will ensure that all offences in which there is any question of sexual intent will come within the scope of this legislation.
We must go to the bounds of what is possible in our discussions, and it is conceivable that there might be a very unusual incident in which, for example, a doctor who had to examine an unconscious person digitally as a matter of urgency would become liable for the offence if the legislation were drafted in the way in which the hon. Gentleman has suggested.
Mr. Grieve: I accept that my amendment might have been better if, having put in a provision to delete the paragraph, I had put in something else. That is why I raised ''lawful authority'' or ''reasonable excuse''. When we consider similar wording in subsequent clauses, we will see that I have done so, and the Minister can respond to that. I accept that it would be necessary to put in something else. The sexual element troubles me. I wonder whether it is necessary to require a jury to pose itself that question.
Beverley Hughes rose—
Stephen Hesford: Will my hon. Friend give way?
Beverley Hughes: Certainly.
Stephen Hesford: The sexual element is important in determining the gravity of the offence within the range of the Bill and the penalty that will be introduced. I would like briefly to suggest a case study. If there were a question whether a young person aged between 10 and 16 had any idea that what they were doing was a sexual activity, it would be a significant element in relation to the victim. It may be an assault—it may be a grave assault—but it should or could be looked at differently. So, the sexual nature is important.
Beverley Hughes: I agree with my hon. Friend but the argument being advanced is not that we should not consider the sexual nature. If I understand the points made by Opposition Members, their argument arises from a concern that it might be possible to propose a defence that a particular action of that kind was not sexual, did not therefore come within the scope of the Bill, and may become liable to a charge under other, non-sexual, legislation, which might attract a lower penalty.
On that point, I want to reassure my hon. Friend. Where a defendant penetrates a vagina or anus with a bottle, for example, it is very likely the court will find that to have been a sexual act—even in the unlikely event that the defence might be based on the fact that the defendant intended only to cause serious harm and that they had no sexual purpose. That is a judgment that the court will make.
Column Number: 049
The concern of the hon. Member for Beaconsfield (Mr. Grieve) may be that, in the Bill, the offence of assault by penetration carries a maximum life penalty, whereas some other offences of assault—for instance, assault occasioning actual bodily harm—carry maximum penalties of five years. The maximum penalty for the offence of common assault is six months imprisonment. I understand the concern that, if a situation arose where the extent to which a particular incident was not sexual was successfully argued, it would attract one of the charges with a much lower penalty. I remind the hon. Gentleman that the offence of grievous bodily harm with intent, which could be charged in relation to a serious non-sexual penetrative offence—if such a set of circumstances existed—is also life imprisonment. There is a maximum penalty for a non-sexual offence that might involve penetration comparable to that for the offence laid out in the Bill.
Mr. Chris Bryant (Rhondda): Might there not also be circumstances in which a doctor who regularly carries out digital examinations gained consent to a digital anal or vaginal examination from the patient, who had not consented to an examination where the doctor was clearly sexually excited? In such circumstances, the person would feel themselves to have been more profoundly abused, and the law should take that into consideration.
Beverley Hughes: Certainly—exactly so. I have no difficulty in agreeing with my hon. Friend. Based on the circumstances of the case, that person would be charged under the legislation.
Any penetrative offences that were not judged to be sexual—and I qualify that statement by saying that it is difficult to conceive what they might be, although the example of my hon. Friend the Member for Wirral, West (Stephen Hesford) in relation to young people might be an example in point—are offences against the person and in such cases there is provision for charges that carry the same maximum penalty of life imprisonment as those in the Bill.
I understand the concern that is the mainspring of the amendment of the hon. Member for Beaconsfield, but between the Bill and legislation that already exists there is provision in the case of penetrative offences that are sexual—and most will be—or rare, non-sexual offences for charges to be laid that attract the same penalty. There is no need for the amendment and I ask him to withdraw it.