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Earl Russell: The noble and learned Lord, Lord Lloyd of Berwick, asked a fair question which deserves a fair answer. He asked what has changed since 1996 to justify a change in the definition of the crime. We have here a case where the law is adapting, as the law has done for centuries, to a change in the culture within which it operates. It is adapting to a change in what is perceived as rape.
The noble and learned Lord stressed that what is distinctive about rape is that it carries the risk of pregnancy. But of course thereon he makes his own argument felo de se as soon as he includes penetration of the anus, which does not carry any such risk. That recognises immediately that there may be something akin to rape which does not carry that risk.
Part of this change in the culture has been an increasing recognition of the fact that there is such a thing as male rape and that, qualitatively, that kind of assault has a great deal in common with the other kind of rape. Thus treating them as the same offence is permissible. Furthermore, there has been a real change in the perception of the offence of rape against a woman. It concerns not only the risk of pregnancy, which because of effective contraception has lessened somewhat. Rather, rape is now perceived more as an assault against a woman's privacy, her dignity, her self-respect and her right to be herself. In those respects, in the forcible invasion of privacy, intercourse through the mouth or through the anus may partake of many of the characteristics of the other kind of rape. It is an assault against a woman's dignity.
The noble and learned Lord might like to consider the parallel of indictments for treason, which technically involves pursuing the king's death. Early indictments for treason tended to set out specifically that the acts were undertaken to "the danger of the life of the said Lord King". But as we come into the 17th century, increasingly the indictments state that acts of treason are those committed, "against our sovereign Lord the King, his Crown and dignity". One understands perfectly well what is meant by that.
Over the past 10 years our concept of rape has changed, as indeed I have changed my own mind. The concept of rape is now an act against a lady or, as it might be, a gentlemanif I may so put itagainst their crown and dignity. I would be happy to see the Bill remain as it is.
Baroness Gould of Potternewton: I wish to refer briefly to those organisations not mentioned by my noble friend Lady Mallalieu which believe that this amendment should not be carried. I cite bodies such as Justice, the Rape Crisis Federation, the Campaign to End Rape and Women Against Rape. People in those groups work at the sharp end of the problems. They do
I should like to mention in particular the Metropolitan Police, which supports the widening of the definition of rape to include penetration of the mouth. From the experience of the policeit has a great dealthis is as serious an offence as rape under the current definition and should be recognised as such. The police believe that it is equally as damaging and traumatic as vaginal or anal penetration and should not be seen as a lesser offence.
I accept that all noble Lords have made the point that this type of assault is a very serious offence. However, I am concerned that if it is removed from this clause, in effect it will become a lesser offence. I do not believe that that is right. We must send a clear message to those who have suffered, to those who work at the sharp end of these problems and to the lay people referred to by the noble Lord, Lord Campbell of Alloway. All those parties say that the Government have got it absolutely right.
I do not believe that the matter is a question of the risk of pregnancy or disease; in a sense those issues are peripheral to the central point. We are discussing here the suffering, trauma and problems of women who have faced this kind of assault. The amendment should not be supported.
Lady Saltoun of Abernethy: Something has been pointed out to me that I want to mention to noble Lords. As far as oral penetration is concerned, most people have a set of teeth. Clenched teeth can provide quite a good defence. Indeed, not only can they provide a good line of defence, they can be an aggressive form of defence because teeth can also bite. For that reason, it is possible that oral penetration should be considered a lesser offence than the other two.
Viscount Bledisloe: Everyone is rightly agreed that forcible oral penetration is a serious offence. The only question is how it should be labelled. At the outset of the Bill, the noble and learned Lord, Lord Falconer, has a simple choice about whether or not to accord to common sense and continue to use the word "rape" in the sense in which it is understood by the populace.
When we are told what is the generally accepted attitude and understanding of the ordinary man in the streetand, particularly, the young man in the streetI find the speech of the noble Baroness, Lady Mallalieu, more convincing, and her experience more telling, than that of the noble Earl, Lord Russell.
We all know what rape is. The Government can either use "rape" in the way in which it is understood by the populace and have a separate crime for forcible oral penetration; or they can pervert the word "rape", as the Bill does at the moment and have people going around saying, "It is ridiculous. I have been convicted of rape but I didn't rape her at all; I penetrated her mouth". As the noble Baroness, Lady Mallalieu, made plain, people will not understand.
Baroness Gould of Potternewton: I hesitate to speak again, but does the noble Viscount believe that victims, the rape crisis people and the Metropolitan Police do not understand the consequences of the act? They understand them clearly. There may well be people on the street who do not consider it a serious actbut it is, and people who have experienced it know that it is.
Viscount Bledisloe: The noble Baroness clearly did not listen to me. I did not say it was less serious; I said it was different. You do not improve a crime of robbery by calling it arson. It may be equally serious, but mislabelling it with a word that people do not attach to it is silly.
Lord Skelmersdale: In considering the problem I have tried to put myself in the position of a juror, something that I have never been. It seems to me that, whichever way round it is, I would like to be directed by the judge at the end of the trial as to whether or not "rape" includes forcible oral sex. We are talking about forcible sex and the dangers attached thereto.
As to which side of the argument I would come down on, I believe that all forcible sex should be classed in the same category. Whether it is called "rape" or anything else does not particularly matter; to me, it is exactly the same.
Baroness Noakes: I am grateful to my noble friend Lord Campbell of Alloway for raising the issue of whether oral penetration should be included within the definition of rape. We debated the subject at Second Reading and we should debate it fully as the Bill proceeds. As at Second Reading, I have listened carefully to the different views expressed.
I find this a difficult area. I have no doubt that non-consensual oral penetration is equally as unpleasant, serious and traumatic for the victim as non-consensual vaginal or anal penetration. That was the finding of the report Setting the Boundaries. I do not know on what evidence the finding was based, but the report certainly came to that conclusion. It is a serious issue from the victim's perspective. We on these Benches do not object to the formulation of the offence of rape as it stands in Clause 1, although, equally, we would not object if a separate offence of non-consensual oral penetration was devised.
I know that my noble friend has tabled another amendment on the creation of a separate offence. As the noble Baroness, Lady Gould said, it is very important that if a separate offence is created it should not be considered a lesser offence, as indeed my noble friend's amendments currently have it. If it is decided that the word "rape" cannot encompass oral penetration, a separate offence could proceed provided it was regarded as a very serious offence.
Schoolchildren are being taught that consensual oral sex is of a lesser order than consensual vaginal or anal sex. They are being taught that it is not full sex. So how can we expect those children to grow up to see non-consensual oral penetration on the same basis as non-consensual vaginal or anal penetration? If a generation grows up believing that it is of a lesser order, we shall see the law fall into disrepute.
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