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Lord Astor of Hever: We on these Benches fully support the government amendments. They make clear that anyone guilty of the offence in Clauses 43, 44 and 45, where the sexual activity is penetrative sex, is liable on conviction on indictment to a sentence of 15 years. In all other circumstances, the penalty when the prosecution takes place before the Crown Court has been raised from seven to 10 years. This increases the severity of the penalty and differentiates between cases of rape and serious sexual assault and other forms of sexual activity. We welcome this. I am sorry to disappoint the noble Lord, Lord Adebowale, but we cannot support the amendments in his name. We agree with the Minister that they go too far. If rape has occurred it can be prosecuted under Clause 1. The Government have made the clauses more severe by changing the maximum penalty from seven years to 14 years in the case of penetration and 10 years otherwise. That is sensible.
Lord Rix: I listened carefully to the arguments put forward by the Minister but I am still not convinced. While I welcome the increase to 14 years, I support my noble friend Lord Adebowale in his amendments which would ensure that the offence carries a maximum life sentence rather than that proposed by the Government.
I wholeheartedly welcome the willingness of the Government to listen, but I fear that the new provision does not go far enough. I hope that the Minister is minded to accept the amendments of my noble friend Lord Adebowale, if not at present, certainly at the next stage of the Bill.
Lord Thomas of Gresford: On these Benches we support the government amendment and regrettably take issue with the noble Lord, Lord Adebowale, who seeks to impose life imprisonment for an offence where there is consent. The essential difference between Clauses 33 and 43 is that in Clause 33 the victim is unable to refuse because of mental disorder or learning disability. That is not the case in Clause 43. As the noble Lord, Lord Astor, said, if having the capacity to
Lord Falconer of Thoroton: The arguments are perfectly clear to everyone in the Chamber. I understand what the noble Lords, Lord Rix and Lord Adebowale, are saying about the extent to which abuse can go effectively inadequately punished, but there must be a proportionate response. We think that this is broadly the proportionate response.
Lord Carlisle of Bucklow: Perhaps I may ask the Minister a general question which applies to the whole of this Bill. I understand that the effect of these amendments is to take Clause 43 and divide it between acts which include penetration and those which do not and to make different penalties depending on whether there is penetration or there is not penetration.
What worries me is that in relation to the whole Bill we seem to be going into enormous detail in a way which is really taking over the duty of the Lord Chief Justice in giving guidance on what the type of sentence should be. Rather than saying that there is a difference between a 14-year maximum or a life maximum, should we not as Parliament say that these are such serious offences that in their gravest kind they would require a life sentence and that we should leave it to the Lord Chief Justice and the judiciary to set out the type of sentences that they consider appropriate, rather than attempt to distinguish between the different types of offences as we do in this Bill at very great length?
Baroness Blatch: I have one point which is actually more of a question. The noble Lord, Lord Adebowale, had a point. I accept what the noble Lord, Lord Thomas of Gresford, said about someone who is deemed to have the capacity to refuse and consents and that that should not be considered rape. But, if they do not consent, the person can be caught under Clause 1 as my noble friend said. That is right.
However, we are talking about a very vulnerable group of people who are in a particular relationship. My question is: what flexibility do the courts have in a situation where consent is deemed to have been given and where it is deemed that the person had the capacity to consent, but that actually the nature of the relationship is such that the carer is all powerful and although the person may have the capacity to say, "No", they do not have the emotional ability?
Lord Rix: I fear that the new offences which cover care workers are still seen in the noble and learned Lord's department as a fallback for action under other Bill headings, as has been stated by other Members of the Committee today, which provide for more severe penalties. I listened to the Minister and others and, indeed, to the arguments put by the Home Office, but that is not really how I see things. Only the abuse of trust provisions give real protection to the vulnerable person in a particularly vulnerable situation who, although able to consent in theory, has little choice in practice.
Lord Falconer of Thoroton: I shall deal quickly with all three points. First, in response to the noble Lord, Lord Carlisle, we set maximums and we do no more than that. The framework must be set by the courts. On the question of whether we are right to draw a distinction between penetrative sex and non-penetrative sex, which is done not only here but also in other parts of the Bill, we think that we are right to do so because it marks the greater seriousness of the offence. Broadly, we are seeking to do what the noble Lord suggests: setting maximums and then leaving it to the courts.
Secondly, in response to the comments of the noble Baroness, Lady Blatch, it is precisely because of the points she made that this run of offences has been included in the Bill. Consent here is totally irrelevant. It plays no part in the ingredients of the offences. To put it simply, the elements required for an offence are the relationship of care between the defendant and the victim, and the occurrence of sexual activity. As the noble Baroness pointed out, shades of consent are difficult to prove in these circumstances. Furthermore, as the noble Lord, Lord Adebowale, remarked, the power is with the carer. The offences reflect the concerns expressed by the noble Baroness.
Thirdly, the noble Lord, Lord Rix, has completely convinced me and the rest of the Government that these should not be regarded as residual offences, precisely for the reasons set out in Setting the Boundaries; namely, the scope for abuse.
The noble Lord said: In moving Amendment No. 234, I shall speak also to Amendments Nos. 241, 243 and 244. The purpose of the amendments is to make sure that those who provide help, advice and instruction for people with mental disorders or learning difficulties to develop their awareness of their own sexuality are not criminalised. These are probing amendments and are supported by the National Autistic Society, MIND and Turning Point. While I accept that the wording of the amendments is not perfect, it does raise the issue of sex education.
Care staff in services may engage in intimate acts as part of a programme of sex education for their patients, for example, facilitating masturbation. Experienced and trained staff who engage in such educational activities should not be criminalised as these programmes enhance the quality of life of the people in their care. Currently the Bill does not provide any protection for care workers who, for legitimate purposes, encourage mentally disabled people to engage in sexual activity.
My amendments offer two alternative options to provide an exemption for care workers in Clause 44, covering care workers "causing sexual activity", and in Clause 45, covering care workers "inciting sexual activity". Amendments Nos. 234 and 241 seek to make the activity an offence only if the care workers were behaving in non-legitimate circumstances and,
Amendments Nos. 243 and 244 propose an exemption in Clause 45 by drawing attention to those care workers who have been authorised by the Secretary of State to provide sexual assistance as part of the treatment which B receives. It might be hard to prove in reality whether or not a care worker was helping a patient perform a sexual activity for the purposes of obtaining sexual gratification. Requiring a care worker to be authorised by the Secretary of State to provide sexual assistance for treatment purposes would make it a more regulated activity. However, I accept that it might be difficult in practice to require care workers to seek approval from the Department of Health.
Care workers provide an invaluable service to those with mental disorders and learning disabilities. It is imperative that they are afforded a comprehensive degree of protection in providing these treatment facilities to their patients. I very much hope that the Government will introduce national guidelines on sexual education for adults with a mental disorder or learning disability. I beg to move.
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