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Paul Goggins: When the hon. Lady was arguing forcefully and persuasively earlier, she failed to persuade me. Now that she is at her most obtuse, to use her word, she has come up with an argument that has some merit, although she may not believe it. [Laughter.] The amendment was probably drafted in haste following the presentation, and clearly there are some difficulties with its present form. I would want to take a further look at it.
The point is that abuse of trust offences are based on the principle that the person can use that position of trust to manipulate a young person into a sexual relationship. If the sexual relationship is entered into before the relationship of trust exists, the fact that the defendant knows that he will be in a position of trust in relation to the child at some point in future is irrelevant. However, there is an argument that, where the child is also aware that a relationship of trust will arise between them, that might influence their choice over the sexual activity. A practical example, which is always worth citing, is where the child knows that the person concerned will be their personal tutor at school for the whole of the next academic year. That could put the child in an extremely awkward position and influence their decision to agree to have a sexual relationship. I recognise that the amendment was tabled from a genuine concern to get the matter right, to protect people and to ensure that people are not exploited and that vulnerability is protected. I urge the hon. Lady to withdraw the amendment but I shall give further consideration to the matter, so that we get the drafting of the legislation as near perfect as possible.
Sandra Gidley: The Under-Secretary is quite right to say that the amendment was drafted in a hurry. I am happy to withdraw it, reassured that I occasionally have flashes of something with which he can find sympathy. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.
Clause 28
Inciting a child family member to engage in sexual activity
Mr. Malins: I beg to move amendment No. 203, in
clause 28, page 14, line 31, leave out sub-paragraph (ii).
It is at moments such as this that I miss my hon. Friend the Member for Beaconsfield because, as I rise to move the amendment, which he drafted with such care, I look into the innermost recesses of my mind to ask myself what he had in mind when drafting it. I am
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quite clearly of the view that while I was out of the Room making a phone call a little earlier this afternoon a similar point cropped up and that my hon. Friend advanced his argument then. One of my hopes is that my hon. Friend, with his normal courtesy, told the Solicitor-General a day or two ago exactly what his argument on this amendment was going to be. That will enable her when she responds to my moving of the amendment to tell me what my hon. Friend intended.
My instinct is to say this. I think that my hon. Friend and I seek in this amendment, which concerns a child being under 13, to make the point that we must examine clause 28, clause 18 and clause 11. The word ''duplication'' comes to mind. I am looking desperately at the Solicitor-General to see if that is the point, and I think that it is. In any event, that is how I propose to lay my argument out. I also think that there is a sentencing issue here, to which the hon. and learned Member for Redcar alluded earlier. That is an important point, which I hope that the Solicitor-General will address at length when she answers. There seems to be duplication here. Is not this point already covered in clause 11?
I hope that I have outlined the arguments satisfactorily.
The Solicitor-General: The hon. Gentleman has told us what he thinks that the hon. Member for Beaconsfield would have said had he been here to move the amendment. I rise to say what I think that my hon. Friend the Under-Secretary would have said in response to the amendment were he responding to it.
I think that the hon. Gentleman has got to the right point, and perhaps I can reassure him on it. We have potential benevolent duplication here, but it is for a purpose. Amendment No. 203 would remove the specific reference to those aged under 13 from the offence in clause 28 of inciting a family member to engage in sexual activity. However, since the offence applies to all children aged under 18 unless the defendant reasonably believes that the child is 18 or over, the amendment has the effect of making the reasonable belief in age provisions apply to the under-13s as well as to those aged 13 or over but under 18.
The offences in clauses 27 and 28 are designed to protect children in familial and quasi-familial settings. It is sadly clear that much sexual abuse against children is instigated in such settings, where children should be at their safest.
Our debate on clauses 6 to 9 highlighted the Government's policy intention to afford maximum protection to those aged under 13. The offences in clauses 6 to 9 make no provision for reasonable mistaken belief in age, although they could involve sexual activity with a child not known to the offender. That is defensible because, despite the fact that some children can look older than they are, maximum protection should be afforded to children under 13, however old they may look.
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There are two reasons why the argument against providing a mistaken belief in age defence is even stronger in respect of clause 28. First, the clauses cover abuse in familial settings in which it is easier to establish the actual age of the child involved before engaging in sexual activity. Secondly, the offence applies to children aged up to 18. It is hard to mistake a child aged 12 or under for one aged 18 or over; the age gap is simply too great.
If the purpose of the amendment is completely to remove children under 13 from the offence in clause 28, I would like to explain why such children are included in these clauses, although we would generally expect an offence under clauses 6 to 9 to be charged where the child victim is under 13. We included the under-13s in the offences in clauses 27 and 28 to close a potential loophole—not the one spotted by the hon. Member for Woking—albeit one that would rarely arise.
The loophole would arise in the course of a trial for an offence under clause 28 against a child believed to be 13, when it became clear that she was in fact 12. The defendant could not be convicted of a clause 27 or 28 offence if they applied only to children aged 13 or over, but he would be liable for an offence under clauses 6 to 9. Because some of those offences have higher penalties, the judge might not allow the indictment to be changed because the offender would not have had an opportunity fully to prepare his case in answer to the more serious charge. He might then have to be acquitted, even if the evidence had established that he had engaged in sexual intercourse below the age of consent.
Extending the offences at clauses 27 and 28 obviates that problem. For those reasons, the clause is right as drafted, and I ask the Committee to resist the amendments.
Mr. Malins: That was a comprehensive reply. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 ordered to stand part of the Bill.
Clause 29
Family relationships
The Solicitor-General: I beg to move amendment No. 109, in
clause 29, page 15, line 13, leave out from beginning to second 'or'.
The Chairman: With this it will be convenient to take Government amendment No. 110.
No. 152, in
clause 29, page 15, line 19, leave out subsection (b).
Government amendment No. 111.
The Solicitor-General: I know that we are not allowed to use visual aids in Committee, but I have one because the matter is complicated. We are examining a matrix of who is or is not allowed to have sex with which family members at what age. We need to identify the changes that the Bill makes and compare the new position of the law with the old position.
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I will explain the Government amendments and why we will resist amendment No. 152, tabled by the hon. Member for Beaconsfield, in relation to cousins. The child familial sex offences are primarily designed to protect children up to the age of 18 within the family environment, where they are particularly vulnerable to sexual abuse and exploitation. Because of the balance of power within the family unit and the close and trusting relationships that exist within it, the family can create opportunities for exploitation and abuse. A great deal of thought was given to the scope of the offence and the familial relationships that should be covered. It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim. Those attributes extend beyond a child's immediate blood relatives.
The definition of a family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships. Thus the definition of a familial relationship in clause 29 extends beyond the immediate blood relatives of the child covered in subsection (2) and falling within the scope of the offence simply by virtue of that relationship.
Subsection (3) deals with more distant family members who are or who have been part of the child's household, or who are or have at any time held a position of trust in relation to the child. The automatic inclusion within the sphere of criminality is contained in subsection (2), whereas in subsection (3) it is conditional not only on them being in one of the categories in paragraphs (a) to (d), but on them having lived in the same household or regularly been involved in caring for, training, or supervising—
4 pm
Sitting suspended for a Division in the House.
4.16 pm
On resuming—
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