| Sexual Offences Bill [Lords]
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Paul Goggins: I shall respond briefly. At present, I am not able to give the hon. Gentleman the information about how many cases there have been. I am interested in the matter and I shall look into it. I caution him and other members of the Committee, however, that indecent assault currently covers non-penile penetration and other non-penetrative activities; it does not differentiate between the two. None the less, I shall write to the hon. Gentleman about the matter. Mr. Grieve: The Minister has touched on an important issue that illustrates the problem of indecent assault covering such a wide spectrum. Column Number: 135 There is a world of difference between ordinary sexual touching and oral sex, for example. Most people outside this place think so, too. For the first time, we have an opportunity to make that differentiation.Paul Goggins: We do, but we must be careful when making such a distinction. As I have said, the more we try to draw distinctions, whether in terms of activity or age, the more problematic things become. I shall be interested to find out how many prosecutions there have been, but whatever the number, we are legislating now. I advanced the proposition that such offences are possible and I agree with the hon. Gentleman that the activities are not acceptable. In the light of that, we should create the offence and leave it to the prosecutor to decide, with guidance, whether it is in the public interest to bring the case to court. In that way, we combine good legislation with sound common sense and public interest.
3 pmMrs. Brooke: I should like to reflect on some of the points made by the hon. Member for Beaconsfield. I agree with what he says; that is probably because of my age, rather than anything else. The linkage between clauses 10 and 14 is the priority area, and arguments have been put forward strongly for sorting out under-18-year-olds and over-18-year-olds throughout the clauses. I should like to introduce a cautionary point into the strong argument made by the hon. Gentleman. If it were thought to be right to condone heavy petting but heavily criminalise anything else, youngsters might not seek birth control and other advice. They might not think that they would go on to act in a criminal manner, although of course they might once they were in a situation to do so. There is a lot more teasing out to be done on that point, because we are putting people who may become very involved in the activity that they are undertaking at risk of their own actions. I hope that our discussion on the amendments is useful; it is teasing out some points. I was reflecting also on a point that the hon. and learned Member for Redcar (Vera Baird) made this morning about not wanting to put someone in court to justify that there was no consent at the age of 12. There is a balance. There is concern that young people may be put in a criminal situation because of the way the legislation is phrased—I am particularly thinking of the impact of clause 14—yet every time we try to do something about that, we end up implying that they will end up in court. The justification for leaving the legislation as it stands is that most such cases do not get to court anyway. I am wondering whether we need to be as concerned about that. I suppose I am asking which situation is more likely to end up in court. I just thought of that over lunch; I am sorry, I was not very quick-witted, but the matter is not in my legal frame. Vera Baird (Redcar): Another point that I sought to make this morning, although perhaps I did not articulate it well enough, was that I would not have thought it a bad principle to introduce into criminal Column Number: 136 law the notion that a sub-13-year-old can consent, because that may have all sorts of knock-on effects in defending other kinds of case. That was a sub-text in what I said.Mrs. Brooke: I thank the hon. and learned Lady for that. The Minister responded to some of the new clauses in the group. If I deal with them now, it will save us time later. Yes, there is repetition of some of the points that we have discussed already, but the amendments not only clearly lay out that under-18-year-olds should be punished with different levels and types of sentences, but relate to the need for a full, multi-disciplinary assessment. The amendments refer specifically to youth offending teams. I mentioned that on Tuesday, but because I said it, rather than putting it in the amendment, I did not get a response, so I shall make that point again. The need for a full multi-disciplinary assessment, particularly in relation to the younger age group, is so important. I am interested to hear that the Minister is so enthusiastic about the Manchester project he has recently visited. What steps can be taken to ensure that such provision is available across the country? That is not an aside, because the subject is integrated into the amendments. There is desperate need to identify problems at an early age, and ensure that they are acted on and treated before we get into worse situations. Certainly, after last night's presentation, it seems clear that it is crucial to identify problems and to take action as early as possible. We can visit such wonderful projects—as well as that in Manchester, there is a smaller one in Dorset—but we need to know that there will be a national programme to tackle such issues. I hope that the amendment has drawn out more useful discussion and further food for thought and that we will continue this debate, because we need to find a solution. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Mr. Humfrey Malins (Woking): I beg to move amendment No. 137, in
'causes B harrassment, alarm or distress and'.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 138, in
'( ) a person does not commit an offence under subsection (1) if— (a) the sexual activity is consentual; (b) the sexual activity does not involve penetration of the mouth, vagina or anus, and (c) A was in a pre-existing relationship with B prior to reaching the age of 18 and their sexual activities were not considered a sexual offence under section 14.'.
Amendment No. 132, in
'(3) Conduct by A which would otherwise be an offence under this section shall not be an offence if. Column Number: 137 (a) B is aged between 13 and 16 and A is no more than 3 years older than B. (b) B has the capacity to consent to that conduct. (c) B does consent to that conduct. (d) the conduct does not involve penetration. (4) B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.'.
Amendment No. 140, in
'unless (a) the sexual activity is consentual; (b) the sexual activity does not involve penetration of the mouth, vagina or anus, and (c) there is no significant difference in the age or mental or physical maturity of the persons involved. ( ) A person under 18 commits an offence if he does anything that would be an offence under sections 11 to 13 if he were 18'.
Amendment No. 141, in
'(1A) Notwithstanding subsection (1) it is a defence for offences under sections 10 to 13 and 15 in respect of a complainant who is 10 years or more but under the age of 16 where the complainant consented to the activity and the defendent is— (a) 13 years or more but under the age of 18, (b) less than two years older than the complainant, and (c) is not in a relationship of dependency. (1B) No person aged 10 to 13 shall be tried for an offence under sections 10 to 13 and 15 unless the defendent is in a relationship of dependency with the complainant.'.
New clause 7—Pre-existing sexual relationship—
(2) Subsection (1) does not apply if at that time sexual activity between A and B would have been unlawful. (3) In proceedings for an offence under any of section 10 it is for the defendant to prove that such a relationship existed at that time.'.
Mr. Malins: I shall speak only briefly about amendments Nos. 137 and 138, and my hon. Friend the Member for Beaconsfield will speak to other amendments in this group. All hon. Members know the problem that we are addressing because we have identified it. We are now trying to find a way through it. With regard to amendment No. 137, I ask the Minister whether there is any fundamental objection to the clause being amended in that way. I am addressing the situation of a person aged 17 having a relationship that falls short of full sex with—if it is a man—a girl whom he knows to be 15. He might have known her or been friends with her for some time. They form a relationship that involves sexual touching. We have all been round and round the arguments about whether that should be a criminal offence—whether the person should be questioned, warned, subject to guidance and so forth. What if the clause were amended to read as follows:
Column Number: 138
it causes the other person ''harassment, alarm or distress''? What is the objection to that? I pulled the phrase straight out of public order legislation. It is a common legal phrase. It covers a recipient of those attentions who finds them unwanted—they cause her ''harassment, alarm or distress''—but it also offers protection for what we loosely referred to as a genuine relationship. All I need from the Minister is an answer to this question: is there a legal problem with my amendment?
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