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Lord Skelmersdale: Clause 7 is rather curiously worded. It is entitled "Causing a person to engage in sexual activity without consent". That does not necessarily mean that only two people are involved. A third person could be involved and hence is prosecuted. One has in mind a man encouraging another man to have sex with a woman of whatever age. Under Clause 7, that seems perfectly possible.
I have nothing to say about the amendment itself but I am confused by subsection (6):
- "Unless subsection (5) applies, a person guilty of an offence under this section is liable".
Lord Falconer of Thoroton: I cannot quite follow the noble Lord's question. Is it about Clause 6?
Lord Skelmersdale: I was referring to Clause 7(6).
Lord Falconer of Thoroton: If subsection (5) applies, the maximum sentence is life. If it does not, the maximum sentence is 10 years.
Amendment No. 44 is much more wide ranging than the noble Baroness let on. It is grouped with Amendment No. 65, which states that for all sex offences in Clauses 1 to 8—including rape, assault by penetration or sexual assault—the maximum sentence for someone age 18 or under should be five years. Once that is clear, I can easily put our case.
Of course the defendant's age will have an effect on the sentence passed in many cases but a number of sex offenders aged 18 and under commit serious sexual offences—for example, rape—and do so more than once. For example, there are 14-year-old and 15-year-old serial rapists. It would be wholly inappropriate to say that the maximum sentence in those cases should be five years—which would be the effect of the amendments.
We return to the question that we have examined before—set a maximum, recognise that age will plainly play a significant part in the penalty but acknowledge that courts need the flexibility required to impose a sentence that fits the crime. We strongly oppose the amendment.
Baroness Walmsley: I thank the noble and learned Lord for his comments. It all boils down to the concern felt by myself and other noble Lords, many children's charities and agencies such as the Family Planning Association, as to the way in which young sex offenders are dealt with and the danger of criminalising young who have sexual activity with consent—which is entirely different from the sexual abuse that the Bill attempts to address. If we were more satisfied about the framework, consistency, quality and availability of services for young people, we would be much happier with the Minister's intentions in setting down criminal activities and maximum sentences. It is a matter of practice.
Many young people commit such offences because they have themselves been victims and are damaged. They must be dealt with in a way that is appropriate to them. Society has failed many of those young people and we should try to put things right. We should help and bear in mind their welfare by providing appropriate treatment—and by doing so, protect other young people from inappropriate sexual behaviour. We shall return to this issue later today and at other stages in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 and 46 not moved.]
Clause 7, as amended, agreed to.
Clause 8 [Causing a child under 13 to engage in sexual activity]:
Clause 9 [Sexual activity with a child]:
Lord Falconer of Thoroton moved Amendment No. 48:
- Page 4, line 36, leave out paragraph (d) and insert—
The noble and learned Lord said: This group of amendments in effect suggests the deletion of Clause 76 and makes consequential amendments. The policy intention behind Clause 76 was to ensure that where someone engages in sexual activity with a child under 13, he must be found guilty of one of the specific offences designed to protect children under 13. They are Clause 2, rape of a child under 13; Clause 4, assault of a child under 13 by penetration; Clause 6, sexual assault of a child under 13; or Clause 8, causing a child under 13 to engage in sexual activity.
Our purpose was to ensure that anyone engaging in sexual activity with a child under 13 should be charged with an offence of strict liability, where any ostensible consent of the child is legally insignificant, there can be no defence of mistaken belief in age and a guilty verdict results in a serious penalty that reflects the gravity of the crime.
However, we have realised that, despite our best intentions, there are difficulties with the way that Clause 76 would operate in practice. For example, where a defendant had engaged in ostensibly consensual sexual intercourse with a child who was believed to be 14 at the time, the Crown Prosecution Service would charge the defendant with the offence of sexual activity with a child under Clause 9. However, should it emerge during the trial that the child was, in fact, aged only 12 at the time of the alleged offence, the prosecution would, because of the effect of Clause 76, have to apply to the judge to amend the indictment to include a charge of rape of a child under 13, pursuant to Clause 2.
Judges have the discretion to amend an indictment during a trial but can be reluctant to do so, especially in circumstances such as these in which the indictment would be amended to reflect a more serious offence. Depending on the lateness of the amendment, the later it is, the less likely the judge is to agree to it.
If, in such a case, the judge were to refuse to amend the indictment, the unfortunate result would be that the defendant would have to be acquitted because the wording of Clause 76 has the effect of making it impossible for him to be convicted of an offence under Clause 9 if the victim was under 13. That would lead to a serious injustice since the defendant would be acquitted on a technicality despite having engaged in sex with a
I oppose Clause 76 standing part. That is with a view to striking Clause 76 from the Bill. This would have the effect that, should it transpire during a trial for an offence under Clause 9—sexual activity with a child—that the victim was under 13 at the time of the offence and that the judge is not minded to allow for the indictment to be amended to a charge of rape of a child under 13, the defendant could at least be found guilty of the offence of sexual activity with a child.
Amendments Nos. 48, 50, 100, 101, 113, 114, 176 and 177 amend all those offences which, as a result of Clause 76 being dropped, could be charged in relation to sexual activity involving a child under 13, to provide that where the child is under 13 there shall be no defence of mistaken belief in age.
For completeness, Amendments Nos. 49, 51, 76, 106, 119, 183, 216, 219, 222, 223, 228 and 237 all have the effect of removing references in other offences to the application of Clause 76 which will no longer exist. Together, these Government amendments will preserve our policy that the law should provide maximum protection for children under 13. For these reasons, I invite the Committee to accept the amendments. I beg to move.
Lord Rix: I thank the Minister for proposing Amendments Nos. 216, 219, 222, 223, 228 and 237. It saved me the trouble because they apply to learning disability. I am grateful to the Government for listening to our pleas. I have the greatest possible pleasure in supporting these amendments.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 49:
On Question, amendment agreed to.
Clause 9, as amended, agreed to.
Clause 10 [Causing a child to engage in sexual activity]:
Lord Falconer of Thoroton moved Amendments Nos. 50 and 51:
On Question, amendments agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Inciting a child to engage in sexual activity]:
Lord Falconer of Thoroton moved Amendment No. 52:
The noble and learned Lord said: Under existing legislation, sexual intercourse with a child below the legal age of consent is unlawful, even if the child willingly engages in the activity or even encourages it. It is our intention that this situation should be maintained, but that the protection offered by the law should be extended to protect children not only from sexual intercourse but from all forms of sexual activity, including those that do not involve physically touching the child.
We have therefore introduced a range of child sex offences to protect children under 16 from all forms of sexual activity. The offences of sexual activity with a child and causing a child to engage in sexual activity are designed to protect children aged 13 and over, but under 16. The maximum penalty for these offences has been set at 14 years to reflect the fact that the sexual activity covered by these offences is ostensibly consensual. Where activity is non-consensual, the offence would fall to be charged under one of the generic non-consensual offences; that is, rape, assault by penetration, and so forth. In relation to children under 13, we have adopted the policy that they are not capable of giving legally significant consent to sexual activity in any circumstances.
Physical sexual activity involving a child below that age will therefore be charged as one of the specific offences relating to children under 13. They are rape of a child under 13, assault of a child under 13 by penetration, sexual assault of a child under 13, or causing a child under 13 to engage in sexual activity.
The maximum penalties for the offences of rape of a child under 13 and assault of a child under 13 by penetration are the same as for the generic offences; that is, life imprisonment. The offence of causing a child under 13 to engage in sexual activity also carries a maximum life penalty where the activity involves sexual penetration of, or by, the child.
As currently drafted, the offence of inciting a child to engage in sexual activity at Clause 11 carries a maximum penalty of 14 years, regardless of the age of the child or the type of sexual activity that takes place.
Amendment No. 53 tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, would have the effect of introducing a maximum
However, I accept that the current penalty attached to the offence is inconsistent with our policy on providing maximum protection for children under 13 who are deemed incapable of giving legally valid consent. This offence is different from the Clause 9 and 10 offences as there is no equivalent under-13 offence. Therefore, this offence will be used where a person incites an under 13 year-old to engage in sexual activity.
I am therefore proposing government Amendment No. 52 that will bring the maximum penalty in relation to victims under 13 in line with that for the offence of causing a child under 13 to engage in sexual activity—that is, life imprisonment for cases involving the incitement of sexual penetration, otherwise 14 years. In the light of my comments, I hope that in her amendment the noble Baroness, Lady Noakes, will accept the approach that we are adopting. I beg to move.
"(d) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13."
5.00 p.m.
Page 4, line 37, leave out subsection (2).
Page 5, line 6, leave out paragraph (d) and insert—
"(d) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13."
Page 5, line 7, leave out subsection (2).
Page 5, line 19, leave out from "indictment" to end and insert "—
(a) where subsection (3) applies, to imprisonment for life;
(b) in any other case, to imprisonment for a term not exceeding 14 years.
(3) This subsection applies if the offence was against a person under 13 at the time of the offence and the activity incited involved—
(a) penetration of B's anus or vagina,
(b) penetration of B's mouth with a person's penis,
(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
(d) penetration of a person's mouth with B's penis."
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