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Resolved in the negative, and amendment disagreed to accordingly.
The noble Baroness said: My Lords, in moving Amendment No. 38 I shall speak also to Amendments Nos. 41 and 69. Amendment No. 38 would remove the pre-existing relationships defence to a charge of abuse of trust. Amendment No. 69 would remove the defence in the case of care workers. I also seek, by Amendment No. 41, to remove the defence from the familial abuse offence. That was inserted by the Government on Report. I am advised by the Public Bill Office that as
I received a most disappointing reply from the noble and learned Lord, Lord Falconer, when I raised on Report the issue of pre-existing relationships defences. The noble and learned Lord simply failed to deal with the arguments that I put. I shall not rehearse them at length here. However, I received no reply when I asked about the imbalance created in a pre-existing relationship once it becomes a relationship of trust. If a teacher meets a 16 year-old girl at a pub, he chats her up, they then begin a relationship and he later obtains a job at her school, there is a pre-existing relationship which falls under the defence.
The girl now finds that, rather than just being romantically involved with an older man, she is romantically involved with one of her teachers. His allure may be all the stronger for that; his influence certainly is. Perhaps previously he has not been able to persuade her to submit to full sexual intercourse. His new-found power over her may make that much easier. Perhaps previously she saw him only occasionally. Now she sees him every single day. He may flaunt his relationship with her in front of other staff and she may brag of her encounters with him to other pupils.
The Minister will no doubt say that the school's internal procedures should be able to deal with the matter, but is that really good enough? He would walk free because no offence has been committed under the Bill. On the other hand, a fellow teacherthis is really extraordinarywho starts a relationship with a pupil at the same school after he starts work there will face prosecution. So of those two teachers, one would face a prosecution if he has a relationship with a 16 year-old in school and the other, who may have met the pupil on a Saturday evening before he took up the post, has a defence. How are people meant to accept the blatant unfairness of that?
When it comes to familial abuse, I am astonished that the Government want to carve out a defence for this much-needed provision. What if a 25 year-old takes a shine to the 16 year-old daughter of his mother's boyfriend? What if the boyfriend then moves in? Under Clause 31 he would be able to continue his relationship with her. He would be able to move on from occasional trysts to regular sexual intercourse living under the same roof as the girl. How on earth are people meant to accept that these two, now living as brother and sister, can commit activities which are legal only because they began before they moved in together?
In all the cases covered by the pre-existing defence, there is a simple choice. The parties can restrain themselves until they become old enough, in other words past the age of 18; care workers and those in positions of trust, for example, teachers, can give up their jobs and move to another job or give up their sexual relationship again until the person has reached the age of 18. The noble Lord, Lord Rix, supported me in that (at col. 18 of Hansard for 19th June).
Not only is a pre-existing relationship defence wrong in principle; it is also wide open to abuse. If a prosecution is brought and the perpetrator claims the pre-existing relationships defence, the "evidence" of the pre-existing relationship could be fabricated, and in many cases would be. I raised that point on Report and the noble and learned Lord, Lord Falconer, failed to mention it in his reply. It may 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 about this relationship they will claim that it started prior to the position of trust. Abusers are manipulative people. We know that. If we give them a loophole in the law, they will surely exploit it. For such a teacher there is an option. They can wait until the girl is 18 or they can move to another post.
It was said at the previous stage of this Bill that it is not a very healthy, professional experience for a teacher or care worker on the staff to have a relationship with the person in their charge. It is not good for the rest of the young people in a class or those in a care home. It is certainly not good professional behaviour. Although that is dealt with informally by guidance and the Department for Education and Skills saying that it is not good behaviour, there is no sanction whatever. It seems to me that there should be a sanction and, indeed, a protection in law. I beg to move.
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