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Mr. Malins: We have had a useful opening debate in which we have laid out some thoughts. The amendments, which I shall seek leave to withdraw, would not sort out what you and I, Mr. Griffiths, might call the consent issue. That problem remains, and we shall return to it in clauses 7 and 8.
We should remember that clause 6 deals with rape of a child under 13, which is an extremely serious matter. Other, more forceful points will be made in respect of clauses 7 and 8, particularly about the consent issue. I am pleased that the Minister said he would reflect on the issue of maximum penalties; I am sure that he will seek to make progress on those matters between now and Report. I am sure that discussions will continue to see if there is a perfect answer to some of the problems we have placed before the Committee.
On behalf of my hon. Friends, I thank the Minister sincerely for his reply. To enable the debate to move on to clauses 7 and 8 and beyond, I beg to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Clause 7
Assault of a child under 13 by penetration
Mr. Grieve: I beg to move amendment No. 130, in
clause 7, page 3, line 27, after 'body', insert 'other than his penis'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 131, in
clause 9, page 4, line 14, after 'body', insert 'other than his penis'.
Mr. Grieve: The amendment can be dealt with briefly, as it refers to the issue of duplication of offences that arose during our sitting on Tuesday. The result of the two amendments would be to differentiate between rape and assault by penetration, which could not involve rape with the penis.
The Minister's explanation remains valid because there is concern that there may be some, perhaps rather odd, cases where it would not be clear whether penetration had taken place with an object or by the penis. In such circumstances, as I understand it, the Government want to retain the flexibility that both counts could be put on the indictment and the jury would therefore have a choice on which to convict. If
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the Minister will confirm my understanding of the matter, I will not press the amendments further.
Paul Goggins: In the spirit of the hon. Gentleman's conciliatory approach, I am happy to confirm his understanding of what I said. As my hon. Friend the Minister for Citizenship and Immigration said in Committee on Tuesday, in cases in which the evidence clearly indicates that non-consensual penile penetration took place, we would expect a charge of rape. If there has not been penile penetration the charge would not be one of rape. In cases where there is some doubt and where, in the course of a case, it emerges that there was penile penetration, we would not want the accused to walk out of court scot-free. That is the territory and our aim is to provide clarity.
Mr. Grieve: I am grateful to the Minister. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Grieve: I beg to move amendment No. 129, in
This, too, is a subject we touched on on Tuesday. However, I return to the matter because it concerns the issue of having to prove under clause 7 that the intentional penetration is sexual. The Minister will remember that on Tuesday I expressed reservations about that test. I suggested that in the case of penetration of the vagina or anus, it was difficult to see that the sexual motive was particularly relevant. I said that there should be a different definition that would properly exonerate someone who carried out such penetration in the course of an intimate search or because there was reasonable excuse for the penetration, for example, if a doctor was treating an unconscious patient. That is why I tabled the amendment and I still prefer my wording. As there was no opportunity for the Government to respond fully on Tuesday, because I had not tabled an alternative wording but simply proposed deleting the words ''the penetration is sexual'', perhaps we might consider it now.
I have received several representations, in particular from Liberty, expressing anxiety about the definition of ''sexual'' in, I believe, clause 79, to which we may return at a later stage. I am worried about what the judge will say to the jury. If something is not easy for a jury to understand mistakes will be made and cases will be overturned on appeal. I have a niggle about the quality of the drafting, and I will come back to that when we discuss clause 79.
Paul Goggins: The amendment would remove the requirement that the penetration carried out during the offence must be sexual. We must remind ourselves that we are discussing the Sexual Offences Bill and that any offences covered by it are sexual and would attract the sex offender notification requirement. The legislation cannot include offences that are not sexual.
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The existing requirement that the penetration be sexual excludes from the offence penetration of a child by doctors or parents for health care reasons. I am pleased to note that, following Tuesday's discussions,
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there is now a degree of sophistication in the hon. Gentleman's approach. That is clear from his further amendments. However, the amendment would cover anyone who penetrates a child under the age of 13 with any part of his body or anything else without a legitimate reason, regardless of whether that penetration was sexual.
Sir Paul Beresford (Mole Valley): Not being legally qualified, may I seek a small clarification? Each of the subsections begins with the phrase ''a person'' and then reverts, in the paragraphs, to the word ''he''. Can I assume that the politically correct have not reached the drafting stage and that it should read ''he or she''? I use the example of Rose West.
Paul Goggins: It is good to be in non-legally-qualified company. The hon. Gentleman's point is well recognised; when drafting legislation, the word ''he'' is always used but can apply to both sexes.
Although it may be hard to conceive of circumstances in which a court would consider penetration of such intimate organs to be anything but sexual, we cannot allow the drafting to include non-sexual assault within the scope of sexual offences legislation. It may be possible that, because of the circumstances and the purpose of the defendant, an assault by penetration was not sexual. Such assaults should not fall within the scope of a sexual offences Bill. A conviction for such an offence automatically results in registration as a sex offender and we simply could not justify sentencing or treating anyone committed of a non-sexual assault as a sex offender.
Alternative legislation exists to prosecute grievous bodily harm with intent, which carries a maximum life penalty—clearly a severe penalty. Any violent, non-sexual penetration of a child should be prosecuted in that way if the case warrants it. There is no reason not to list grievous bodily harm as an alternative charge on the indictment if assault of a child under the age of 13 by penetration is charged. I acknowledge that the hon. Member for Beaconsfield has progressed from his original amendments, and I hope that he will accept my explanation.
Mr. Grieve: I am interested to hear the Minister's response. I confess that I had not gleaned from Tuesday's debate—it is interesting that it has now emerged, although I am not suggesting that the Government concealed it—that one of the reasons for using the word ''sexual'' is to justify placing a person on the sex offenders register thereafter. I confess that that had never crossed my mind as a reason for the definition of ''sexual'' in clause 79. That may explain why clause 79 is not as happily drafted as I would like.
Paul Goggins: It may help the hon. Gentleman to know that the Government have tabled an amendment containing a new definition of ''sexual''. I hope that it will lead to greater clarity.
Mr. Grieve: I am grateful to the Minister, and I accept that that may improve matters. However, I still believe that it may be a mistake to insist on the sexual motive being proved. The jury will have to be satisfied that there was a sexual intention—whatever that may mean—behind the act.
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I agree with the Minister that in some cases it is essential to establish a sexual intention. When one is deciding whether an assault, such as when one person brushes up against another, is indecent under the old law, the sexual nature of the act becomes very important. There is general agreement on the Committee that penetration, especially with an object, of another person without their consent is a serious matter. Once it is shown that it happened and that there was no consent it is easy to say that an offence has been committed. Yet we are putting an extra hurdle before the jury of having to decide the sexual motivation before conviction can take place.
Defendants, as I know from experience, are very creative individuals. They quickly cotton on to all sorts of explanations that can be put forward to justify their actions. They will tell their barristers to put forward the defence that it was all an unfortunate accident and that there was no sexual motive behind it. We will get into a situation where, with a superabundance of caution, prosecutors will put non-sexual alternatives on the indictment. The difference will be that if there is no grievous bodily harm it will be a very minor matter. It may just be a common assault. It might be actual body harm.
As I said on Tuesday, we are making a rod to beat ourselves with quite unnecessarily. Although the idea that we could end up with a penetration of someone's anus or vagina with an object that does not have a sexual motivation is rather far fetched, we could have all sorts of odd people trotting into the witness box to argue that as their client is a eunuch who cannot get any arousal out of his activities there can be no sexual motivation. I am trying to think this one through. I just do not think that the provision is necessary.
The Minister suggested that the reasoning behind the provision was anxiety about the sex offenders register. However, it is time for us to be reasonably robust. Let us suppose that a repeat serial offender, who penetrated other people with objects without consent, was able to establish that because of his psychological condition he did not do so from any sexual motive. Would we not want him on the register to warn people that he was around? We would probably think that the sex offenders register would be a good place for him. Here also we are making life difficult for ourselves. I appreciate the Minister's point and I do not want to take more of the Committee's time. I will obviously ask leave to withdraw the amendment, but I hope that we will think about this because I find it an odd thing to do in view of the nature of the allegation that is being made.
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