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Lord Monson: Before the Minister sits down, will he remind the Committee of the recommendations made in Setting the Boundaries and Part 1 of the Sex Offenders Act 1997 in respect of this particular clause?
Lord Falconer of Thoroton: The document Setting the Boundaries suggested that there should be a defence if a relationship started before and continued after. But the logic of saying that one acted in a way that would have been regarded as criminal and continued to do so after the law is enacted is difficult to defend.
The noble Baroness said: I moved amendments to the Sexual Offences (Amendment) Bill to extend the scope of the existing law covering abuse within the family. Although the word "incest" will not be used in the new offence in Clauses 28 to 32, I am very pleased that the scope of the protection to cover abuse within the family has been significantly widened in the way that I proposed some three years ago. For example, step-parents are included and so is abuse by a family member of the same sex.
The Government have in many respects produced a better law of incest than currently exists, re-implementing many aspects of English law on incest that were removed when the Ecclesiastical Courts lost their jurisdiction. But in doing so, the Government are dropping the title "incest" and so are weakening public understanding of the offence and recognition of its seriousness.
Existing law has three omissions. It does not cover sexual activity between family members of the same sex; oral sex or sexual acts falling short of penetration; and step-parents, step-siblings, uncles and aunts. Where a child is involved, Clauses 28 and 29 remedy those loopholes and form a better law of incest than we have at the moment. However, the name of the offence is changed in the title from incest to sexual activity with a child family member. Clauses 68 and 69 largely restate but rename the existing law of incest for adults. For the first time, same sex activity and oral sex are also covered, but unlike the offences protecting children, Clauses 68 and 69 do not include sexual activities falling short of penetration. Nor do they bring step-parents, step-siblings, uncles and aunts within the scope of the law.
Clauses 28 to 32, 68 and 69 create a problemalthough I know that Clause 32 will now not stand part of the Billby removing the word "incest" from the statute book. Incest is a term that is very well understood among the public; it recognises the particular nature and seriousness of the offence. There is all the difference in the world between the expression "non-consensual sex" and "rape". To say you are a victim of rape has a clear meaningeveryone knows what it means. To say you are a victim of non-consensual sex can never convey the same degree of seriousness. In the same way, there is all the difference in the world between "sexual activity with a child family member" and "incest".
Children who are victims of incest suffer a particularly grievous form of child abuse. In addition to the abuse, with all that that can mean, there is the violation of the close family relationship. This seriously handicaps the child's ability to trust other adults in future. The incest law exists to help preserve the sanctity of family ties.
The word "incest" graphically captures the idea of impurity. This is the meaning of the Latin word "incestus" from which the English word derives. It encapsulates the desecration of a family relationship by the most appalling abuse of trust.
The overall section title in the Bill does not say "incest offences" but "familial child sex offences". The word "familial" lightens the gravity of the matter. It is an obscure medical term of comparatively recent origin, more common in the US than in Britain. In
I understand that the sex offences review believed that the term "incest" should be removed as it might imply that the innocent party was complicit in the offence. If that was its aim, it has comprehensively failed. The descriptions "sexual activity with a child family member" or even "sex with an adult relative", the title of Clause 68, do not have any connotation that consent was withheld. Removing the concept of incest from the law removes from the name of the crime any concept of guilt. Ultimately, the only person who can benefit is the one who has committed the offence. Dropping the word "incest" makes the severity of what the victim has suffered appear much less serious.
I cannot help feeling that "incest" has been removed as a token gesture to political correctness. No doubt the Government will claim that they are merely tidying up or modernising the law. Whatever the case, I am afraid that this renaming downgrades and, I believe, sanitises the offence.
As I mentioned a moment ago, a plain contrast is that the Bill retains "rape" as an offence. Many noble Lords will be more than aware of this following lengthy debates earlier in Committee. Rape will still be called "rape". The Government have not proposed, so far as I am aware, to replace "rape" with an offence of "non-consensual sexual activity". There are moves from some activists in this country and in the United States to rename paedophilia "intergenerational sex". Will that be next? I sincerely hope not.
As brought in by the Government, the Bill rightly prohibits sexual activity between uncles and nieces. This relationship of affinity is also prohibited in the marriage law. Incest is the right description for this offence. In a real life case, most people who heard of it would immediately think that incest had taken place, not a "familial child sex offence".
One simple definition of incest is sexual intercourse between close relatives, the definition given by the Shorter Oxford English Dictionary. A sexual relationship between close relatives is commonly known as incest. The Bill defines the close relationships covered in Clauses 28 to 32 as "family". If these relationships are close enough to be defined as "family", they are also close enough to be defined as "incest".
I repeat here that the sexual offences review's most positive proposal in relation to this offence was the widening of the relationships covered. The review drew attention, for example, to research evidence showing the high incidence of uncles involved in sexual abuse. As the noble Lord, Lord Monson, said on 13th February 2003 at Second Reading, incest is a taboo in all cultures and religions. The distinguished American sociologist, Talcott Parsons, argued that,
The Government are restoring to the English law on incest categories of close relationships which were covered by our law for centuries. Under the Bill, a wider range of relationships is covered by the offence. The pattern ultimately derives from the Judaeo-Christian tradition as recorded in the Bible, which covers step-parents, step-siblings, uncles and aunts.
"Incest" will remain in statute for Scotland and Northern Ireland. If the term can be retained and understood there, why can it not be the same in England and Wales?
Clauses 68 and 69 relate to incestuous activity between adults. Here, too, it should be recognised that a serious offence has been committed of which society strongly disapproves. This preserves the universal pattern of the family for all ages.
Finally, I strongly support the effect of Clauses 28, 29, 68 and 69, but not the name. The word "incest" is striking in its immediate gravity. The alternatives offered by the Government are vague and vapid. They serve only to detract from the seriousness of the offence and, in that, can only aid its perpetrators. If my amendments are accepted, the headings in the Bill will be changed to include incest in the name of the offence. I beg to move.
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