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Lord Monson: My Lords, I cannot match the quality of the research done by the noble Lord, Lord Lucas, on this matter but I have always thought that the present maximum penalty of life imprisonment for this offence to be utterly ridiculous and disproportionate. I said as much when we were debating another de facto sexual offences Bill some years ago. Equally, it would be going a little too far to decriminalise it altogether. Once again, as so often in this Bill, I think that the Government have struck about the right balance.

The judges are of a like mind to myself, in that, in the relatively rare cases when prosecutions are brought and convictions obtained, the average custodial sentence is about nine months. Quite often, non-custodial sentences are imposed. If the Government's two-year maximum is accepted, I would guess that this will be brought down somewhat and that most convictions will result in non-custodial sentences. That, except in cases involving actual cruelty—which by definition obviously must occur occasionally—I think is right.

I understand what the noble Lord, Lord Lucas, is aiming at in the second amendment but I have not been able to give much thought to it. However, as to the clause as a whole, I think that the Government have broadly got it about right.

Lord Falconer of Thoroton: My Lords, the sex offences review heard evidence that sexual activity with living animals was a matter that needed to be addressed by the criminal law. We have no reason to believe that other types of sexual activity with animals, about which the noble Lord, Lord Lucas, treated us to a long—I do not complain about it being long—well-researched exposition, is anything other than extremely rare. I am not persuaded, therefore, that there is a need to extend the offence in the way suggested.

It is also important to remember that there is a longstanding provision in the Protection of Animals Act 1911 which makes certain cruel behaviour towards or neglect of an animal an offence.

The provisions in the Sexual Offences Bill are therefore not the only means of providing protection for animals in law. I think that, as the noble Lord, Lord Monson, has said, we have the balance about right. We are not minded to increase the scope of the Bill and for that reason we must resist the amendment.

Lord Lucas: My Lords, it is quite clear that I am not going to carry the House with me in a wave of approbation for these amendments. I therefore beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 166A not moved.]

Clause 73 [Sexual Penetration of a Corpse]:

Lord Lucas moved Amendment No. 167:

    Leave out Clause 73.

The noble Lord said: My Lords, the noble and learned Lord has just said that he was not inclined to accept my amendments on felching because he had very little evidence that this was a current practice. Here we have the Government proposing to make a new offence of something for which the Government have absolutely no evidence that it existed before. That is what the noble Lord said in Committee. He could produce no instance where this offence, or what is to be an offence, had been proved. There was no public evidence of it taking place at all, let alone of it being common.

We are therefore creating an offence for a crime which, as far as the Government know, does not exist. I consider that an extraordinary thing to do and that is my principal reason—other than the fact that the noble and learned Lord is not listening—for wishing to move this amendment.

My Lords, we should not start to create crimes for things that do not exist. I entirely accept the noble and learned Lord's strictures that if felching is not common and the Government consider that it is not a current practice, we should not seek to stretch the criminal law to outlaw it. I believe that the Government should take their own medicine with regard to accepting that a particular activity does not exist and consequently not introducing an offence to cover it. We have in front of us in the newspapers an example of outrageous behaviour in relation to a body which has caused real offence, and where there seems to be a problem of producing a crime to fit the behaviour.

The noble and learned Lord will be well aware of the Muslim woman whose body was covered in bacon in Hillingdon. The police have looked very hard to find something with which to charge the perpetrators. They quite clearly—having talked to them—will find it extremely difficult to dream up a charge which will stick or have any great relation to the offence or certainly bear any relation to the seriousness of the outrage felt by the relatives of the person who was subject to the offence. One can imagine other things that one could do to a dead body which would cause great offence. One could paint swastikas on or mutilate a dead body. All of those acts seem to me much more likely and much more current that what is proposed as an offence in the Bill.

I tabled a Written Question to which the noble and learned Lord kindly replied. He said that the Government had absolutely no intention of even investigating, let alone preparing clauses to deal with, other ways in which a body might be treated outrageously and the offence caused by that. All the Government seek to outlaw is the one offence in relation to a body which might actually in some

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perverted way be an expression of love. That seems to me strange, and in the circumstances of what is going on at the moment, unfortunate. If one considers what one would wish to happen to oneself, I suspect that the one thing that one cares about is reputation. I care not whether my body will be consumed by worms, burnt or dealt with in some other way. What comes after me is my reputation and the way in which people think of me. There is absolutely no proposal to defend that. Indeed, one's reputation is without shield after one's death.

Therefore, from all those points of view, this is an entirely unnecessary and inappropriate clause. I very much hope that the Government will choose to withdraw it. I beg to move.

Lord Monson: My Lords, I am fairly open-minded about the amendment except that I take issue with the noble Lord, Lord Lucas, on the frequency of the prospective offence. I cannot believe that it has never happened at all. I would guess that it is very rare: it might even happen only once every two, three or five years but I cannot believe that there have never been cases of it.

However, I should like to take this opportunity to draw attention to a curious paradox. Shortly we shall be invited—or, in practice, told—to approve a European Union directive which will make it illegal for employers to refuse to employ anyone on the grounds of sexual orientation. By definition sexual orientation has a perfectly obvious and clear meaning. The directive will mean that not only will it be illegal for employers to refuse to employ people whose orientation is towards their own sex but also people whose orientation is towards animals, dead bodies or, indeed, children. It is worth reflecting upon that.

7.15 p.m.

Lord Falconer of Thoroton: My Lords, this is the Sexual Offences Bill; it is not a Bill concerned with how one treats dead bodies generally. There must be a limit to what is possible under the Bill. There is currently no law that covers sexual penetration of a dead human body, which is a surprising omission in the criminal law as we believe that such behaviour represents a violation of the respect that ought to be shown to human remains and, when such behaviour comes to light, is profoundly distressing for the family of the dead person.

While existing legislation covers exhuming a dead body without lawful authority there is no other protection for the body of a person once he or she is dead. Setting the Boundaries heard anecdotal evidence that sexual penetration of dead bodies took place, albeit in rare and unusual circumstances. It is impossible to quantify the extent of the behaviour but that is not surprising when the law is silent on the issue. There is, however, no indication that it is anything other than extremely rare. Having said that, I do not agree that the offence should be struck from the Bill. I am sure that it will be agreed that sexually to penetrate the corpse of another person is profoundly abhorrent, that it is not only incredibly disrespectful to the

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deceased but that it could also be capable of causing the deepest possible distress to the friends and family of the dead person. The current gap in the law needs to be addressed for those probably rare occasions when such behaviour takes place. For those reasons we are minded to keep the clause in the Bill.

Lord Lucas: My Lords, when I asked the noble and learned Lord whether the Government proposed to create additional offences to ensure that the respect that ought to be shown to human remains was not violated, he said that the Government had no plans to introduce any additional offences of that kind. Although the noble and learned Lord argues his case strongly—I find in my heart no way of disagreeing with him as regards the context—he shows no inclination at all to carry that logic over into other ways in which a corpse may be violated and great offence may be caused thereby, although we have in front of us a real case of that and no real evidence—or anything other than anecdotal evidence—that necrophilia takes place in modern Britain. I consider that aspect of the matter extraordinary.

I also consider extraordinary that the noble and learned Lord chooses to create an offence for something which does not exist although he resisted the creation of an offence in my previous amendment on the ground that the relevant offence did not exist. The noble and learned Lord wishes to have it both ways, if that is not an indelicate thing to say in the context of the Bill. I must accept the fact that the Government have that right. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 168 to 171 not moved.]

Clause 76 ["Consent"]:

[Amendments Nos. 172 and 173 not moved.]

Clause 77 [Presumptions about the absence of belief in consent]:

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