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Standing Committee B
Thursday 11 September 2003
(Morning)
[Mr. Win Griffiths in the Chair]
Clause 6
Rape of a child under 13
9.10 am
Mr. Humfrey Malins (Woking): I beg to move amendment No. 133, in
clause 6, page 3, line 18, after 'if', insert
'as part of an assault'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 134, in
clause 7, page 3, line 25, after 'if', insert
'as part of an assault'.
Amendment No. 135, in
clause 8, page 3, line 33, after 'if', insert
'as part of an assault'.
Amendment No. 136, in
clause 9, page 4, line 2, after 'if', insert
'as part of an assault'.
Mr. Malins: I welcome the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), to the Committee. I may be wrong, but this Standing Committee may be the first that he has attended as a Minister. We are delighted to see him in his place on the Front Bench and congratulate him. Our dealings with him thus far have been most cordial, and we do not doubt that they will continue in exactly the same vein.
Clauses 6 to 9 have a great deal in common. They all relate to children under 13 and a common thread runs through each clause. I hope that I—and my hon. Friend the Member for Beaconsfield (Mr. Grieve), if he makes the same error, which I do not think that he will—will be forgiven if I occasionally make a comment that could apply to more than one clause in the group. Once made, it will not be made again, so time will be saved.
The general proposition that is well understood by all members of the Committee is that aggressive, non-consensual, predatory sexual behaviour on the part of one person towards another is utterly to be deplored. Furthermore, our attitude of horror towards that proposition escalates as the gap in age between the parties involved widens. It is our duty as legislators to protect people, particularly from predatory sexual behaviour. The Bill is designed to modernise the law on sexual behaviour and assault and, by and large, it does that well. However, the other side of the coin is that all members of the Committee find it difficult to criminalise consensual behaviour of a sexual nature between young people who are broadly of the same
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age. We know that young people experiment with sexual behaviour from a fairly early age.
Such views were well reflected in the debate in the other place. How then do we match those two different points of view in legislation? Clauses 6 to 9, but particularly clauses 6 to 8, will create very serious offences relating to people who perform sexual acts with children under 13. That makes sense to all of us when the defendant is older than the victim, but does it make sense when the defendant is the same age or much the same age as the victim? Perhaps not.
Let me give some examples. If a boy and girl aged 12 indulge in French kissing to which each consents, they will be committing an offence under clause 8. If a boy fondles a girl sexually over her clothes, or vice versa, both will be committing a sexual offence under clause 8, and that offence will be punishable—yes, punishable—by 14 years imprisonment. I am not being flippant, but if two 12-and-a-half-year-old boys relieve the boredom of their first year at boarding school by indulging in mutual masturbation—which has happened—a serious offence will have taken place. If, at the suggestion of a girl aged 12, a boy of the same age puts his finger into her vagina, the boy will be committing an offence punishable under clause 7 by imprisonment for life. We think that that is a preposterous proposition, for the reasons I have outlined.
The anomaly already exists in principle, because much of the behaviour in question is criminal under existing law. However, the position seems to be worsening, because under the Bill the maximum penalties are much increased. Under current law, some of the behaviour we are talking about would constitute indecent assault and/or indecency with children, which is currently punishable with up to 10 years imprisonment, but the Bill would make such offences punishable with 14 years imprisonment in some cases and life imprisonment in others.
What truly shocks us about sex with children under 13 is if there is a large age gap. Of course, we want to make it seriously punishable for an adult to perform sexual acts with a child under 13; there is no doubt of that. We also feel uneasy and unhappy about, for example, a child of 14 performing sex acts with a child of eight or 10, but we feel far less aghast at—indeed, we understand—the prospect of consensual sexual acts between children who are 11 or 12. I do not think that there is any appetite in society for criminalising that sort of behaviour.
What is the proper course of action? My hon. Friend the Member for Beaconsfield will speak at some length on the various approaches that can be taken. There is the argument—I am not sure that it is right—that there should not be an age gap between the parties of more than, say, two years. If such a provision were brought into force, it would create an exemption from criminal liability in respect of consensual acts only. The child of 12 who forces attentions on an unwilling victim of the same age would still be committing a variety of offences.
Amendment No. 133 to clause 6 would insert:
''as part of an assault''.
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Amendments Nos. 134, 135 and 136 are identical to it, but apply to clauses 7, 8 and 9; that is why I bring them within the scope of this debate. Amendment No. 133 is a probing amendment. The Law Society suggested it to me, and its purpose is to clarify the definition of non-consensual offences against children under 13.
Clause 6, like clauses 7 to 9, covers non-consensual sexual offences against under-13s, so the issue of consent is not relevant there. We understand the plain and laudable purpose of clauses 6 to 9, which is to protect children from suffering abuse. Any touching that is not consented to constitutes an assault. However, as assault is not part of the offence under the Bill as it stands, the provisions will also criminalise consensual child-on-child conduct in which both parties are under 13. Although child-on-child activity can be abusive and damaging, is it the Government's intention to have the threat of criminalisation hanging over the heads of those engaged in consensual activity?
The Law Society and Opposition Members understand that the Crown Prosecution Service intends to issue guidelines for prosecution. I feel distinctly uneasy about passing a draconian law that punishes offences under clauses 6 and 7 with imprisonment for life, and with imprisonment for 14 years under clause 8, and simply relying on the fact that the Government say, ''Don't worry about the law. We shall make sure that it is never enforced.'' It is not helpful to have legislation that constantly requires modification by guidelines.
In this instance, there is something to be said for the proposition that it is advantageous to spell out the requirement of an assault element to the offence. Of course, things would be clearer if such an element were introduced into the clause, because if the conduct that is disapproved of resulted from an assault it would become a serious offence.
I conclude with a few general remarks on the age of consent for heterosexual sex. In this country it is 16. Committee members will be interested to know—in fact, they probably already know—that the rules in European Union countries vary. For example, in Austria the common age of consent for males and females is 14; in Denmark, Finland and France it is 15; in Italy, on occasions, it can be 14; in Spain it is as low as 12, and in Sweden as low as 15. There are different approaches to the matter.
I have opened the debate with some comments of general principle on clauses 6, 7 and 8 and stressed that all of us are completely against predatory sexual behaviour. However, it is difficult for the Opposition to accept that draconian sentences for consensual sexual behaviour between youngsters should be on the statute book. More will be said about that as the debate unfolds.
Mr. Hilton Dawson (Lancaster and Wyre): The hon. Gentleman speaks very well and with good purpose. There is much sense in what he says. However, is he happy with the introduction of the word ''assault''? Might not that leave room for the appalling kinds of
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sex offenders—people who groom or entice a child into sexual abuse—about which some Committee members heard yesterday evening in our discussion with Scotland Yard?
Mr. Malins: The hon. Gentleman makes a good point. I am not entirely happy with the wording. One of the difficulties with the Bill, which was referred to in the House of Lords debates and by the Home Secretary, is that although we know what we want to achieve—I do not suppose that there is a scintilla of difference between Committee members about that—we are not certain how to achieve it. Other relevant amendments will be tabled and dealt with later. One of mine says that the activity in question must have created harassment, alarm or distress to the complainant. The hon. Gentleman says, quite rightly, that there are difficulties. I do not suggest that my amendment is a perfect solution.
You have been kind enough to let me range a little on the issue, Mr. Griffiths. We shall return to this subject as the debate unfolds. This is one of the more important debates that we have had, or will have, on the subject. Different points will crop up under clauses 7, 8 and 9, and which there will be a certain amount of interchange, and I hope that many Committee members will voice their views on this vexed topic. That may help us reach a conclusion.
I have always understood that the Government acknowledge the issue and will do their best to listen during the course of the Committee stage to the propositions that are advanced. They might, if not at this stage, then on Report, seek another way of improving the Bill.
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