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Lord Lloyd of Berwick: First, I want to say briefly that I agree with almost all the points made by the noble Lord, Lord Campbell-Savours. I also pay tribute to the work that the noble Lord, Lord Thomas, has put into his amendment. Of course I agree that we should all aim for simplicity, and the amendments certainly have that merit when compared with the Bill. However, they do not have any greater merit than the law as it stands.

The noble Lord and I agree that, for a person to be convicted of a crime, he must have a guilty mind. In the law as it stands, the guilty mind consists either of knowledge that the woman is not consenting, or recklessness—in other words, indifference to whether or not she is consenting. What exactly is the mens rea in the offences that the noble Lord now proposes? I have some difficulty in identifying that state of mind.

Lord Falconer of Thoroton: I shall deal first with the points made by my noble friend Lord Campbell-Savours. In January 1999 the then Home Secretary set up a review. It took 14 or 15 months—that was quite right, because it consulted widely—and reported in April 2000. Setting the Boundaries was published and widespread consultation was sought in relation to it. In November 2002, a further document was published indicating the conclusions. The review has taken considerably over three years.

One will not reach a point when lawyers are not able to debate a better way to deal with matters. I do not think that the right course is not to proceed now with introducing a Bill. Indeed, if one did, there would be very considerable dismay from a large number of people, such as the noble Lord, Lord Rix, who have pressed for such a Bill for a considerable time. If one thought that one would get more agreement from the lawyers, it would be worth waiting, but I expect that one would not.

Lord Campbell-Savours: I do not want to pre-empt my noble and learned friend's speech, but have the ideas put forward by the noble Lord, Lord Thomas, been considered before? When the Bill was drawn up, were people in the department thinking on those lines and considering producing legislation of that nature? Have they conceived of the ideas previously?

Lord Falconer of Thoroton: No one could have thought of the brilliance of the ideas of the noble Lord, Lord Thomas of Gresford. However, it is perfectly possible to produce such a structure. Five principles need to apply in constructing the provisions with which are dealing. The first is simplicity, and the second is the ability to be understood by the public. We agree with the noble Lord in relation to those two. The third is that the offence matches the level of

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criminality, a point made by the noble Baroness, Lady Walmsley. The fourth is that, in relation to those under 13, consent is presumed not to be present. The fifth is the objective element in relation to consent. The noble Lord agrees with the last two of those.

Do the noble Lord's amendments amount to a better proposal than ours? If they do, we shall certainly consider them. Our proposal divides the sexual offences into three—rape, assault by penetration, and sexual assault. The last of those covers offences not covered by the first and second. The noble Lord's amendments amalgamate the existing offence of rape with some of the more serious elements of the existing offence of indecent assault. In that way, the new sexual violation offences would cover non-consensual penetration of the vagina or anus with the penis or any other object, and also sexual assault by contact between the mouth of one person and the genitals of someone else.

I note the way in which oral penetration has been expanded in the noble Lord's amendments to cover non-penetrative activity such as cunnilingus. The maximum penalty for those offences would be seven years, unless the assault was aggravated by any of the factors listed in the proposed new Clause 2, including that the victim was a child under 13.

Therefore, the noble Lord's offence does not have the simplicity of our offences in relation to what is rape and what is not. The noble Lord has amalgamated the offence of sexual violation by rape with that of any other form of unlawful connection. That is the way that he defines it. Therefore, first, his offence does not have simplicity in relation to severity, and, secondly, so far as concerns understandability, terms such as "unlawful connection" are not everyday language. Everyone is familiar with the term "rape", and terms such as "penetration" are also easily understood.

I cannot see the merit of grouping together all these types of offending behaviour in this way as the result would be rather less clear; nor am I convinced that oral-genital touching is as serious as oral penetration, as would be the effect of Amendment No. 8, and that it should be brought within the same category as rape. Therefore, I do not believe that the scheme of the noble Lord, Lord Thomas of Gresford, is as good as the one proposed on grounds of either simplicity or understandability.

I was surprised by the intervention of the noble Baroness, Lady Walmsley. Both she and the noble Baroness, Lady Noakes, said—I thoroughly agree with this—that acquaintanceship rape or rape by someone whom you know, even though it may not involve violence, can be just as disturbing and traumatic as stranger rape. That is not reflected at all in the approach of the noble Lord, Lord Thomas of Gresford. If the offence is not carried out under "an aggravating circumstance", then seven years is the maximum sentence, even though it is an acquaintanceship rape and causes as much damage.

I have to agree with the noble Baroness, Lady Noakes. She will recall, as I do, that at Second Reading the noble Lord, Lord Thomas of Gresford, proposed that the right way to deal with the matter was

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for there to be a date rape offence—that is, an acquaintanceship rape offence—and another offence. I opposed that on the grounds that the noble Baroness, Lady Noakes, put forward this evening. By reducing the offence in the unaggravated circumstances, that is precisely what the noble Lord seeks to do.

Lord Thomas of Gresford: I said in terms that I make no distinction between date rape, stranger rape and marital rape. The offence comes within simple rape if it does not have aggravated circumstances. But if violence, fear or any of the other matters that I listed are used in a date rape, it is an aggravated offence carrying a life sentence. It is a misconception of my argument to say that Amendment No. 8 refers to date rape and that the others refer to something else. They are all treated equally. It is possible for a stranger rape not to involve aggravated circumstances. That is difficult to envisage because normally fear is involved, but it is possible. Certainly marital rape can take place in that way.

I entirely agree with my noble friend Lady Walmsley, first, that rape is rape and is a serious offence and, secondly—I believe I used the words earlier today—that date rape can involve a breach of trust and be just as psychologically damaging as violence with a stranger. I have said that.

Lord Falconer of Thoroton: I want to make three points in relation to that. First, it appears that the noble Lord has changed his position since Second Reading. Secondly, how is the case to which the noble Lord's noble friend referred to be dealt with under his scheme? What happens where there is no violence but simply intimidation and terror as a result of a long relationship leading to damage? Seven years is the maximum sentence in relation to that. The noble Lord shakes his head, but I ask him to identify within which provision of aggravation it fits. My third point is that I am comforted by the fact that the noble Baroness, Lady Noakes, took exactly the same view as I did.

Therefore, in relation to the third test, in my view the proposal is not able to deal with the degree of wrong that rape sometimes involves. In relation to proposition number four, the amendment deals with the under-13s.

10.15 p.m.

Earl Russell: Can the noble and learned Lord take on board that if two couples—one who know each other and one who do not—do the same thing and are treated equally, this does not make a distinction between them? I support the amendment warmly. If it said what the noble and learned Lord thinks it says I certainly would not.

Lord Thomas of Gresford: The noble and learned Lord asked me specifically where there is reference to a long-term relationship. Subsection (2)(a) in Amendment No. 10 refers to using violence.

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Subsection (3) refers to a series of acts, which is exactly the same wording as in the Bill. Clearly, it covers exactly those circumstances.

Lord Falconer of Thoroton: The example I gave was one where the fear is such, where there is no immediate threat of violence, that the victim succumbs and feels totally violated by what has happened. It is about as serious an offence as it could be and it is not covered in those circumstances.

On the fifth item—the objective element—as the noble Baroness, Lady Noakes, again accurately said, we both claim the same for our reasonableness test. We appear to be entirely in agreement about what the reasonableness test seeks to achieve. The noble Lord said, "Our test can be put simply to the members of the jury. They will be able to understand it and come to a conclusion". We say precisely the same for ours.

We have set out in our provision a detailed explanation of how the test works. On this point we think that a clear statement in statute is particularly helpful for everyone: defendants and jurors alike. We want our new legislation to send a clear message that it is the defendant's personal responsibility to satisfy himself on the issue of consent. The way in which he meets that requirement will obviously vary from case to case, but it will always require him to do something positive. We believe that referring to the actions of the defendant is a helpful way of explaining this in law and is in line with the approach suggested by Setting the Boundaries. Like the noble Lord, we believe that the right approach is to leave it to the jury to decide the question. I pay tribute to the innovation and thoughtfulness of the noble Lord, Lord Thomas of Gresford, and to his change of position from his Second Reading speech. However, applying the five tests we have, with the greatest respect we believe that our provisions do this better.

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