Sexual Offences Bill [Lords]

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Mr. Grieve: I reassure the Minister that I do not intend to press the amendment to the vote. I raised the matter because I think that it is serious. Although the Minister has answered my queries in part, I confess that I remain slightly unpersuaded on the issue. There were some interesting contributions, and the hon. Member for Wirral, West raised an interesting point.

It is the case that there may be circumstances where someone has an apparent lawful reason to carry out penetration, but is doing it for a wholly unnecessary purpose to get sexual gratification. Of course it is

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possible for someone to get sexual gratification from their professional activities while fulfilling a lawful purpose. That is something against which no legislation is going to be possible.

However, the problem could be dealt with by removing the word ''sexual'' and putting in the words ''lawful authority'' or ''reasonable excuse''. There is a number of words in the jargon of legislation that I can think of which make it quite clear that carrying out an act such as an intimate strip search would be permissible, if one had lawful authority. A reasonable excuse may be, for instance, if one were dealing with an unconscious patient and one considered that an examination had to be carried out forthwith.

It is quite possible to draft something without including the sexual element. My feeling is that the word has crept in partly because it is the Sexual Offences Bill, and partly because it is a generic description that applies to a number of different offences—in some cases absolutely properly. In the example I gave earlier in relation to clause 4, it is vital that the sexual element is a factor that should be determined by the jury.

I question the necessity of the term in clause 3. It seems that we are seeking to highlight in this offence Parliament's abhorrence and prohibition of the penetration of a person's anus or vagina without consent with an object or part of a body. The question of motive from the victim's point of view is unlikely to make very much difference, although I accept that there may be factors that can be taken into account in sentencing.

I do not wish to turn a serious topic into something comic, but I remember watching the ''Carry On'' films as a boy and I seem to remember that ''Carry On Nurse'' ends with a penetration by a daffodil—that would be unlikely to merit life imprisonment, even though it would clearly be an offence under clause 3. The courts would have to make a judgment. The reason why we have the penalty of life imprisonment is that we regard penetration as a potentially serious matter, not that such a case is of necessity going to attract life imprisonment or, for that matter, many years in prison. It will all depend on the facts.

Is it necessary for the jury to be satisfied about a sexual element? If it is, we will find that every barrister and prosecuting counsel in slightly odd cases will put down two counts on the indictment: one will be assault by penetration, resulting in life imprisonment; and the other, unless there are serious injuries, will be ABH. Why make a rod with which to beat our own back, when we are trying to spell out clearly that something is not only prohibited but regarded as a potentially serious offence?

Mr. Bryant: I am, as a Welsh MP, rather hesitant to stand up on the issue of daffodils.

The hon. Gentleman said that people might draw sexual gratification from any line of work, and that we cannot pass a law to prevent that. However, those people who for their work regularly have to insert things into other people's bodies should be presumed

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to have a different set of criteria guaranteeing their probity.

Mr. Grieve: I entirely agree. The point that I was trying to make is that something might be lawfully done, but in that particular context still give somebody some sexual gratification. We can only condemn those who do things that are unnecessary, wrong or unlawful and, as I said earlier, without lawful authority or reasonable excuse. I want to prevent a jury from having to answer a question that might, in the context of what they are being asked to deal with, be unnecessary.

Beverley Hughes: I realise that the hon. Gentleman is trying to bring his remarks to an end, so I shall briefly intercede. I am perfectly happy to go back and to make absolutely sure with officials that we need do nothing further on the clause. I shall bring any information back to the Committee.

Mr. Grieve: I am most grateful to the Minister. That is as much as I could possibly have asked for. It may well turn out that there are good, cogent reasons why we should stick to this formula. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Grieve: There was one other matter that was raised by Liberty but on which I did not draft an amendment. The organisation made the valid point that there appears to be a potential duplication between assault by penetration and rape. As worded, the fact that assault by penetration does not specifically exclude penetration with the penis might mean that it could be argued that a person who commits rape is also committing assault by penetration. Is that what the Government intended? If the Government wanted to spell it out clearly, it would be necessary to reword clause 3(1), which says that person A commits an offence if

''he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else''.

Beverley Hughes: Where it is clear that the penis is the object with which somebody has been penetrated, a person will always be charged with rape. The two clauses were drafted as they were—clause 3 in particular—because there may be circumstances where it is not clear with what the victim was penetrated. If somebody is blindfolded, for example, there may be a reasonable assumption or a view about what happened, but it will not be clear. It is therefore important to retain the wording of the clauses to allow for that eventuality.

Hon. Members will know that non-consensual penetration of the vagina or anus with anything other than the penis is currently charged as indecent assault, which carries a maximum penalty of 10 years imprisonment. From the important, although fairly brief, discussion of the clause it is clear that all Committee members regard forceful penetration with another body part or object as extremely serious offending behaviour, which can inflict as much, if not more, pain and physical damage on a victim as penile

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penetration and is likely to result in similar psychological trauma.

Clearly, the law must recognise that penetrative offences are serious. That is why we created the new offence of sexual assault by penetration. We believe that the maximum penalty for that offence should be life imprisonment—the same as for rape. The new offence will provide better redress for those who are subjected to such appalling offending behaviour. I hope that it will enable the correct targeting of more offending behaviour against children and adults and that it will be underpinned by a maximum sentence that properly reflects the gravity of the offence that is committed.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clauses 4 and 5 ordered to stand part of the Bill.

Clause 76

Presumptions about the absence of

belief in consent

Beverley Hughes: I beg to move amendment No. 41, in

clause 76, page 36, line 36, at end insert—

'( ) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.'.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 33, in

clause 76, page 36, line 36, at end insert—

'(f) any person was, at the time of the relevant act or immediately before it began making threats of any description against the complainant or against another person'.

Beverley Hughes: I have already outlined the policy justifications for the rebuttal presumptions in the clause in my response to amendment No. 37, so I will not delay our progress by rehearsing those arguments. We aim to place in statute the circumstances in which sexual activity will not be condoned, and in relation to which the jury is entitled to presume that the complainant did not consent to the sexual activity and the defendant did not reasonably believe that the complainant consented to it. The judge will direct the jury to find the defendant guilty of a non-consensual offence where he does not raise sufficient evidence to rebut that presumption and if it is satisfied beyond reasonable doubt that the sex took place, that the circumstances existed and that the defendant knew that they existed.

We must be sure, before placing such an evidential burden on the defendant, that the circumstances in which the relevant act took place are such that they give rise to serious doubts about the ability of the complainant to exercise free choice. In short, the list of circumstances in the clause must include only those where it is reasonable to conclude that the complainant would not have consented and the defendant would not have had a reasonable belief in consent.

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After a suggestion made by Lord Lucas during debates on the Bill in another place, we decided, by means of amendment No. 41, to add one more situation to the list of circumstances where a rebuttable presumption should arise. That is as follows: where a person engages in sexual activity with somebody knowing that he—the defendant—or a third person has administered a substance to the victim, or caused the victim to take a substance without consent, and, having regard to when the substance was taken, it was capable of enabling the victim to be overpowered at the time of the relevant act. The amendment complements the offence in clause 62, entitled ''Administering a substance with intent''. That covers a person who administers drugs or another substance to a victim without their consent with the intention of overpowering them, so that he or another person can engage in sexual activity involving that victim. The offence is complete once the substance is administered, before the intended sexual activity takes place.

3.30 pm

That addition to the rebuttable presumptions list covers situations in which sexual activity has actually taken place in such circumstances. We are talking about what is referred to as drug rape. In cases of drug-assisted sexual activity, in which the victim has been drugged without their knowledge or consent, we believe that it is fair for the jury to presume that the complainant did not consent and that the defendant could not reasonably believe that she had consented.

The Government are aware that the incidence of drug-assisted rape is a cause for public concern; indeed, last night police officers argued for the inclusion of the provision. We are committed to taking whatever measures we can to strengthen the law and offer increased protection to potential victims. Adding drug rape to the list of rebuttable assumptions makes it clear in statute that such behaviour will not be tolerated. I hope that hon. Members agree and will see fit to accept the Government amendment.

Amendment No. 33 would add to the list of circumstances the case of the defendant or anyone else making any threat against the complainant or any other person either at the time of the alleged offence or immediately before it. I understand that the amendment is intended to cover any type of threat, such as threatened redundancy, burglary, or even future violence. I appreciate that the consultation document, ''Setting the Boundaries'', originally proposed fear of serious detriment as a circumstance that should give rise to a presumption about lack of consent. However, by the end of the consultation process, we decided to exclude fear of serious detriment from the list in clause 76(2) simply because the term is too imprecise and would create uncertainty in law. That is my basic problem with the amendment.

What constitutes a threat significant enough to lead to submission will vary between individuals enormously, according to their circumstances and the circumstances in which the threat is delivered. For example, the threat of loss of one's job could be

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extremely serious for someone who is unskilled and dependent on a stable income to pay for urgent medical treatment or anything else that is critical, but not so serious for someone who could expect to find alternative employment readily.

The amendment might also cover threats that could take place at any time in future and which it might be within the complainant's power to prevent, either through their efforts alone, or—in the case of threatened violence—by going to the police. In addition, the amendment covers threats against any other person and potentially takes the scope of the offence outside the circumstances that could reasonably be considered to be of particular relevance to the victim. The amendment would cover a threat of any description made by anyone against another person. It is so wide that we simply cannot accept it into the list in subsection (2).

I certainly do not trivialise the concern that prompted the amendment, and I recognise that threats, whether they refer to causing harm or detriment to the victim or a member of their family, should always be taken seriously by the jury. They are important factors in determining whether the complainant consented, and whether the defendant believed in consent. However, as I have already made clear, we must ensure that the rebuttable presumptions in clause 76 are those on which we feel certain it is fair to conclude that consent was not present unless the defendant can raise sufficient evidence to the contrary.

To justify inclusion in the clause, any threat must be both realistic and immediate. It must involve the threat of immediate violence: for example, where an intruder holds a mother in one room and forces her to submit to intercourse by threatening that otherwise his partner will kill her child in another room.

Threats of an uncertain nature, made by the defendant or any other person, against the victim or anybody else at some unspecified time in the future, are too distant, too uncertain and unspecific to justify inclusion in the rebuttable presumptions list. I shall be very interested to hear Opposition Members' arguments in support of the amendment.

 

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Prepared 9 September 2003