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Baroness Blatch moved Amendment No. 93:

The noble Baroness said: My Lords, I oppose Clauses 27 and 49 because they introduce into the abuse of trust provisions an outrageous defence for pre-existing sexual relationships. I also oppose government Amendment No. 105B which attempts to insert a similar pre-existing relationship defence in respect of familial sexual abuse.

The amendment appears to mean that if the family relationship within Clause 30(3) and (4) comes into existence after a sexual relationship has begun the sexual activity can continue legally. In a letter that I received only today the Minister gave an example about two young people. I am using the same analogy. A 16 year-old and a 21 year-old meet socially and strike up a romantic relationship, and, through that relationship, their respective parents come together and set up home, either inside or outside of marriage. The young people are now step-siblings and come

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together in the same house. One could be 21 to 25 and the other just 16 or 17. If the parents disagree with that relationship, now that they are living under the same roof and are probably in the same bed, continuing and developing a sexual relationship, the parents have no defence whatever. What the youngsters are doing is legal because of the defence set out in the Bill. Previously, the two may have engaged in nothing more than petting. However, now, living together under the same roof as brother and sister, they can legally engage in full sexual intercourse, safe in the knowledge that they have a defence. I cannot understand why the Government should continue to approve of that.

I am especially disappointed about the proposed defence for familial sex abusers. I was delighted when the Government agreed to my amendment in Committee to remove the defence for relationships which began prior to the legislation, but now an even worse defence is being created. The arguments against having that sort of defence, against a charge of abuse of trust, or for care workers, hardly need repeating. The Government have recognised that there are those who obtain positions of trust so that they can begin to take sexual advantage of youngsters or people with mental disorders. It is astonishing that the Government should fail to recognise that such people might obtain such a position in order to continue such abuse.

Clause 27 gives carte blanche to teachers and others in positions of trust to continue sexual relationships with young people in their care as long as they can produce evidence that the sexual relationship started prior to the position of care. Clause 49 does the same for care workers who look after people with mental disorders. The "evidence" of the pre-existing relationship may be fabricated. It might be that a teacher begins a sexual relationship with a 16 year-old in his class and the two of them agree that, if they are ever asked, they will claim that the relationship started prior to the position of trust. That could become a standard technique. Even if the relationship really does begin prior to the position of trust, why should that justify the continuance of that sexual relationship during the time the child or mentally disordered person is in the care of the other? Why should the teacher who begins his sexual relationship with a pupil a week after he starts his job be guilty of a criminal offence, but not the teacher who begins his sexual relationship a week before? That makes no sense. The person who takes up a position of trust over someone with whom he is in a sexual relationship ought simply to choose between the relationship and the job. To allow the relationship to continue without legal sanction eats away at the very trust on which professions such as teaching and caring are built.

Furthermore, the pre-existing relationship may possibly have been a relationship between equals, but the ongoing relationship after the position of trust arises cannot be. There is no telling how much extra influence the person in a position of trust might have as a result. That may mean that the relationship lasts for much longer than it would have done. Perhaps the relationship prior to the position of trust essentially

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involved mild petting. The presence of the relationship of trust might enable an adult to persuade or pressure the child or mentally disordered person into engaging in full sexual intercourse in the knowledge that that would be legal. That might result in the vulnerable person being drawn into a much more frequent and perhaps more deviant sexual relationship than might otherwise have occurred.

Similar arguments apply to the new defence for familial abuse. In a letter of 30th May the Minister wrote to the noble Baroness, Lady Carnegy of Lour, on the issue of pre-existing relationships. He stated that the Department for Education,

    "would expect a teacher who was in a pre-existing relationship with a 16 or 17 year-old not to move to the establishment that the young person attends, or to ensure that the young person goes to a different establishment from the one in which they teach".

That is precisely why we believe that that should be a criminal offence. It is all very well saying that that is what the Department for Education would expect. What if the teacher ignores that advice? He can ignore it with impunity because there is a defence set out in the Bill. There will be nothing in law to prevent him from doing so.

On the contrary, that teacher will find that the Bill specifically gives him a defence allowing him to continue his sexual relationship with the child in full view of all the other staff and students at the school, without fear of prosecution. To create scope for that kind of abuse by including that definition within the Bill cannot be right. I beg to move.

Lord Rix: My Lords, my stance, and that of Mencap, on Amendment No. 143 is straightforward. It is that a sexual relationship between consenting adults is not in most cases a matter for intervention by others. However, where one party has a professional responsibility or duty of care towards the other party, that needs to end for the relationship to be legitimately a sexual one. Imagine the situation in a residential home where a care worker is having sex with a resident because of a prior relationship, whereas in all other cases such a relationship would be taboo. Such an argument is insupportable.

3.30 p.m.

Lord Falconer of Thoroton: My Lords, we have three amendments to deal with. Amendments Nos. 93 and 143, which were tabled by the noble Baroness, Lady Blatch, would, in effect, get rid of the defence of a pre-existing sexual relationship—a sexual relationship that pre-exists the relationship of trust. The noble Baroness wishes to remove that defence, and I anticipate from her remarks that she will oppose government Amendment No. 105B, which will be moved later. It will insert a similar defence in relation to familial sex offences.

I shall deal first with Amendment No. 93. The primary motivation for having the abuse of trust offences is the need to protect young people aged 16 or 17, who, although over the age of consent to sexual activity, are considered to be vulnerable to exploitation by a person who holds a particular

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position of trust or authority in relation to them and so has considerable power over them. If the 16 or 17 year-old enters into a sexual relationship with a person with whom there is no such relationship of trust, the purpose of the abuse of trust offences is not brought into play. In those circumstances, there can be no basis for interfering with such a relationship. If the relationship came into existence separately from the relationship of trust, the policy purpose would not be offended. For that reason, we think that the fact that the sexual relationship exists before the relationship of trust should be a defence. An obvious example would be a Connexions adviser who is having a relationship with a 16 or 17-year old and then meets him or her in that context.

There is a second issue that arises in relation to the care worker offences. The noble Baroness will be aware of situations in which, for example, one member of a couple who are not married but have been in a long-term sexual relationship develops a mental disorder and the other starts to look after him or her. We hope that, in that situation, we would not criminalise a sexual relationship that continued while the "well" member of the couple cared for the other. That would not be appropriate for that situation.

A third situation might be that of two 17 year-olds—A and B—who are in a sexual relationship. As a consequence of that relationship, A's mum and B's dad meet and marry, and they all decide to live in the same house. According to the logic of the noble Baroness's resistance to our amendment, the relationship between the two 17-year olds would have to stop. That is not sensible, and I hope that, when the time comes, noble Lords will support Amendment No. 105B.

Baroness Blatch: My Lords, that is, again, a disappointing answer. There has been no definition of a prior relationship. It could be extremely cursory. It could be an agreement between two people simply to say that there had been a prior relationship, as it would not be provable. It could just be a close encounter on one evening, prior to the person's taking up the job.

The noble and learned Lord has not commented on the point made by the noble Lord, Lord Rix. Even if there is an established and provable relationship, if the person concerned works in an establishment and continues a sexual relationship with one of the patients—that is probably not the most appropriate word—of that establishment or one of the people in its care, that professional person has the choice of working in another establishment in order to makes things regular. In other words, the code of practice put in place by the Department for Education and Skills should become the basis on which professionals are judged.

The noble and learned Lord unfairly used the example of a very long-standing relationship involving somebody with a mental impairment or between two people who have lived together, of whom one is now a carer for the other. If that happens in their own home, there is no argument. I concede to the noble and

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learned Lord that it may not apply in the particular case that he mentions. However, we are talking about 16 and 17 year-olds, and, if a relationship continues in an establishment in which one of the people is a professional—

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