Lester Publishing, 2003

Doc. No. 2003.001

SEXUAL ETHICS AND CRIMINAL LAW

FRANCIS BENNION*

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Specific proposals in the Bill

20. Sex with children 12 The Bill's proposals relating to sexual activity with a child, that is a young person who has not yet attained the age of sixteen, demonstrate the great danger involved in drawing up legislative proposals concerning sex without first laying down the moral principles that are to be followed. Antony Grey wrote in his book Speaking of Sex 13 -

"Children are sexual beings. Adolescents are highly sexual beings".14

21. That is obviously true, and should be accepted as postulating a compelling guiding principle when remodelling the laws governing sexual behaviour. Adolescence begins well before the age of consent (sixteen), yet the Bill insists it should be a criminal offence for anyone, even an age mate, to engage in any sexual activity whatever, even though consensual, with such a "highly sexual being" as an adolescent aged under sixteen. I find it incredible that the Government should really think this is the right way to proceed when laying down our sex laws for the twenty-first century. No one who had read and absorbed chapter 12 of THE SEX CODE could seriously put forward such a sex-negative proposition as that. Anyone knows who remembers their own childish consensual sex play, and sexual experimenting and exploring with age mates, that such activities are a universal and important part of everyone's growing-up. The criminal law should not interfere with it. The criminal law should have no part to play in it: nor should the state's social services. Yet the white paper says that "where a person [of any age] engages in sexual activity with the ostensible consent of the child then one of two offences - "Adult sexual activity with a child"

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or "Sexual activity between minors" - can be charged.15 I go on to discuss these in reverse order.

22. Sexual activity between minors This proposed criminal offence, punishable with up to five years imprisonment, deals inter alia with sexual activity between pubescents from eleven to fifteen. It "will cover a range of behaviour including, for example, any activity with a child that a reasonable person would deem to be sexual or indecent in all the given circumstances. This will cover a range of behaviour, including, for example, inducing a child to take off their clothes in circumstances which would reasonably be considered as sexual and outside the bounds of normal family life." 16

23. The italicised words are a giveaway. Consensual sex play between young siblings or friends who are age mates, say within the age range eleven to fifteen years, is considered by the Home Office to be outside the bounds of normal family life. Or is it? Is the new law really going to leave vital questions like this to be finally settled only after years of delay and a final appeal to our highest court of justice, the House of Lords? That would surely be a gross dereliction of duty by Parliament - handing the final decision to non-elected judges rather than deciding for themselves. Yet deliberate ambiguity is often used in legislation when clarity might arouse dissent.17 It should not be so used in the present case, when so much depends on being clear.

24. Much childish sex play between consenting age mates is within the bounds of normal family life. That is my view, but many would differ. I suspect that most parents, scared by current propaganda in the media and elsewhere, would indeed differ from that opinion. They would run away from any display of sexuality by their supposedly innocent little children.18 Yet if they only knew it, a child

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is incomplete without awareness of its sexuality. Usually nature does not permit such ignorance. We should respect nature, in this as other spheres.

25. A typical current attitude to child sex is that shown in the following comment by the American academic John Pesciallo-

For siblings close to the same age, incest may merely be sexual exploration that is a part of normal development but socially unacceptable or undesired. However, when there is coercion or a significant age difference, then it is considered abuse. Generally, the difference of five or more years would constitute abuse by the older child (even if the younger child were willing). Anytime an older sibling manipulates a younger child into sexual behavior that is not age appropriate or socially acceptable, it is sexual abuse.19

26. This is confused, even contradictory, - and that is symptomatic of the chaotic attitudes to this vexed topic. The italicised words suggest that something that is part of normal development can nevertheless be socially unacceptable or undesired. Yet if conduct is part of normal development it obviously should not be socially unacceptable or undesired. If nevertheless it is socially unacceptable or undesired then obviously society has got things wrong, and its mistaken attitudes should not be reflected in legislation enacting criminal offences.

27. The Bill shows many signs that the Government is being by driven by unbalanced, indeed uncivilised, attitudes to human sexuality widely held today by the British public. Yet the Government dismisses and disregards similar inhuman attitudes widely held on matters such as capital punishment, homosexuality, racism, corporal punishment, immigration and asylum. Surely it should in the same way insist on enlightened attitudes to sex when it frames new legislation concerning that difficult topic. It should be sex positive, but it is not.

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28. A further element is that much public agitation in the sex field is driven by hysteria, and is therefore unreliable as a basis for legislation. In this connection I cite as just one example facing pages in the Daily Telegraph for 15 January 2003. On page 22 Andrew Marr wrote-

"I can't be the only one completely bemused by the paedophilia mania sweeping the country. It cannot surely be that paedophilia is a new thing. So either it has always been going on . . . or we are in the grip of something like mass hysteria. Talking to older people . . . you hear of a Britain in which child sex abuse - what they'd call 'mucking about' - went on all the time . . . but was simply repressed, ignored and certainly not publicly discussed . . . But are there so many serious paedophiles about? I simply do not believe it."

29. On the facing page 23 the editorial said-

"As Andrew Marr writes opposite, paedophilia mania is sweeping the land . . .This mania prompted the ludicrous recent decision by Edinburgh City Council to ban parents from making video recordings of their children's Nativity plays without the consent of the parents of the whole cast. It inspired the disgraceful campaign by Rebekah Wade . . . to 'name and shame' convicted paedophiles in the pages of the News of the World - a campaign that moved some of her more moronic readers to attack the home of a paediatrician in Newport. It has led some councils to insist that any parent who offers to help out at a school fete must first be vetted by the police."

30. These Government proposals raise the question what lawful sexual outlets is it supposed that pubescents in the age range eleven to fifteen should have? If these borderline creatures are, as must be admitted, "highly sexual beings",20 they obviously require suitable opportunities to fulfil their sexuality.21 This could be called one of their human rights, if that topic had been fully developed in the region of sexuality. While many girls may, if unawakened sexually, happily

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continue in an "asexual" condition until they reach the age of consent or later, this does not apply to most boys. The Bill's proposals limit the lawful sexual activity of pubescent boys to solitary masturbation, which surely cannot be right. I believe it is horrifyingly wrong.

31. Here the Government's defence might partly lie in para. 37 of the white paper 22 -

. . . in some circumstances, particularly where the partners are close in age and apparently agree to take part in sexual activity, it may be more appropriate to pursue the matter through child protection rather than criminal justice processes, out of concern for the welfare of both the children involved. In other cases, even when both parties are children, one may already have a history of abusive sexual behaviour towards other children, which justifies the involvement of the criminal law or his or her behaviour may have been sufficiently exploitative or abusive to merit prosecution. The Crown Prosecution Service already has discretion about whether prosecution is in the public interest . .

32. This apparently applies to all forms of sexual activity between children even where consensual and free from objectionable features such as the infliction of bodily harm (comparatively very rare). So it covers what is described above as "sexual exploration that is a part of normal development".23 It is surely quite wrong that the police and Crown Prosecution Service should be involved at all in such cases. The fact that the CPS might eventually decide that it is not in the public interest to proceed with a prosecution even though technically a crime has been committed is no answer. The existence of this residual CPS discretion should never be used as an excuse for labelling conduct as criminal when truly it is not. The right of any citizen to bring a private prosecution also has to be borne in mind here. This right might be exercised for example by a spiteful neighbour.

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33. Nor in such cases is it "appropriate to pursue the matter through child protection . . . processes". This still brands the children's conduct as criminal, calling for intervention by state services. Such intervention can do immense harm to the children, and is uncalled for. It needs to be recognised and stated that such childish consensual conduct is not in any way wrong, immoral or criminal. On the contrary it is to be accepted and welcomed.24 Otherwise the child is inflicted with sex-guilt, a pernicious and very common feature of the way we treat sexuality.25 This brings me back once again to the question of the undeclared and apparently non-existent moral basis of the Government's proposals.

34. A final point on sexual activity between age mates who are both under sixteen concerns gay boys. When the Bill for the Sexual Offences (Amendment) Act 2000, which lowered the gay age of consent to sixteen, was going through the House of Commons Mr Simon Hughes MP for the Liberal Democrats made much play with the fact that clause 2 (later section 2 of the 2000 Act) removed the stigma of criminality, as he put it, from under-16s who became involved in sexual activity with a male homosexual over that age.26 The present Bill proposes to repeal section 2 without replacing it. So that safeguard for gay boys will go. It is puzzling anyway that it did not apply to protect a boy under sixteen who engaged in consensual sexual activity with another under-age boy, which as we all know very commonly happens.

35. Adult sexual activity with a child According to the white paper this new criminal offence, punishable with up to fourteen years imprisonment, will cover "a range of behaviour including, for example, any activity with a child that a reasonable person would deem to be sexual or indecent in all the given circumstances." 27 This sets the standard at that of the reasonable person, so often used in our law - and used throughout this Bill. Here it is inappropriate as a

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test simply because, as noted above, so many people are unreasonable when it comes to sex. Putting it another way, in the grey area there is no agreement on what would be "indecent in . . . given circumstances". On the contrary if this question were asked at random a wide variety of answers could be expected. That is no proper basis for the criminal law.

36. The Bill does not apply technical terms usually employed in this area, such as "paedophilia". We might be thankful for that. One sign of the confusion the nation is in over sexual relations between adults and the immature is that in the media they are all covered by the blanket term "paedophilia". This masks the fact that many very different types of action are involved here, verging from the horrific to the trivial. Broadly they are of three types. A paedophile is a man who is sexually attracted by little children well below the age of puberty- usually girls. A pederast is a man or youth (or occasionally a woman) who is sexually attracted by handsome pubescent boys, good-looking young males between the ages of eleven and fifteen who are just beginning to ripen and bloom in their nascent sexuality. A third type of man suffers from the Lolita syndrome, named after the character in Vladimir Nabokov's 1955 novel of that name. This draws him to nubile girls aged again between the ages of eleven and fifteen, with whom he desires otherwise normal sexual intercourse. Conduct so differently based demands carefully graduated responses, but the Bill ignores these distinctions and applies a blanket approach. That is one more ground for condemning it.

37. Grooming of children Another new target is what the Bill calls sexual grooming of children, which will have a maximum penalty of five years imprisonment.28 This new offence seems to be aimed at internet prowlers, but could also apply in real life. The object is to catch adults who try to make friends with children so as later to have sex with them. Sex offenders with dire motives have, says the white paper, always found ways of gaining the trust and confidence of children with the object of abusing them sexually. The offence

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will only arise "where it is clear that this is what the offender intends". But how is that clear intention to be proved? If the suspect goes on to carry out a sexual assault that can be charged as an offence in itself, but there is then no need for the preliminary offence of grooming. Where no assault later ensues how can preliminary grooming be established? How do the acts in question differ from what any kindly adult might do to befriend a child, who is perhaps visibly in distress? Some people like children.

38. Here we have another indication of the vicious trend of these proposals. The whole grooming scenario is well on the way to inhibiting, even destroying, that wide social intercourse between adults and children that hitherto has been a constant feature of human life. Until this period in our increasingly sick society the adult-child conjunction has been regarded without question as a valuable, even necessary, feature of human behaviour. Adults who wish to groom children for sexual purposes are in a tiny minority. Are they to drive out the vast majority of adults who only have children's welfare at heart? If this pernicious proposal is carried into law every teacher, church or charity worker, every police officer or other person who sees a child in need of comforting will shrink from administering that necessary solace for fear it might be considered as "grooming". This could apply to grandparents of the child, or other relatives. It could even apply to parents themselves. The prospect is appalling. It is a prime example of the cure being worse than the disease.

39. That is not all. It gets worse. The Bill goes on to adumbrate a further hurdle for adults wishing to befriend children.29 There will be introduced "a new civil order intended to protect children under 16 from inappropriate sexual behaviour by adults aged 18 or over". This will include any acting by the adult "in such a way as to present a risk of sexual harm to children". It will cover "explicit communication with children via email or in chatrooms or hanging around schools or playgrounds". The penalty for breach of the order will be a maximum of five years imprisonment.

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40. I acknowledge there is a problem here. A comparatively minute proportion of adults do indeed pursue children in this undesirable way. Yet we must all preserve a sense of proportion. The best is the enemy of the good. Under Gresham's law bad currency drives out sound. The Home Office seem unaware of the terrible dangers of Gresham's law when introduced, at this late day, into the realms of human sexual behaviour.

41. Familial sexual abuse of a child 30 Not content with the new offences outlined above, the Bill proceeds to duplicate them by creating the further new offence of "Familial sexual abuse of a child". It will protect children up to the age of 18 from abuse by a "family" member of any age. This will include all "who have a 'familial' relationship with a child by virtue not only of blood-ties, adoption, fostering, marriage or quasi-marital relationship but also by virtue of living within the same household as the child and assuming a position of trust or authority". The maximum penalty will be 14 years imprisonment. My criticisms given above also apply here. This proposed offence certainly over-eggs the pudding.

42. Mistaken belief in child's age The Bill proposes changes in the law regarding mistaken belief in a child's age.31

"For the offences of abuse of a position of trust and familial sexual abuse of a child, the defendant will have to prove that he held an honest and reasonable belief in age if he is to be acquitted. We think it right to put the onus on the defendant in these circumstances because the defendant will normally know the child well and therefore the child's age." 32

43. As the white paper says 33 this reverses two House of Lords decisions. It is astonishing. There obviously ought not to be two different systems regarding mistake in age, for some offences requiring the

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matter to be proved by the prosecution beyond reasonable doubt and for others requiring it to be proved by the defendant according to a different standard of proof, the balance of probabilities. This is a recipe for unbounded confusion and is inherently unjust. Furthermore it is unsound. If it is proved that the defendant did indeed know the child well, and therefore its age, the plea of ignorance is likely to be unconvincing and therefore fail. If in fact the defendant, although in a position of trust, did not in know the particular child well or at all (as might happen) he should not be prejudiced just because "normally" a person in that position would know the child well.

44. Prohibited adult sexual relationships 34 This offence, with a maximum penalty of two years imprisonment, will cover sexual activity between certain adult "blood relatives". The well-known term incest is for some unexplained reason dropped. Again the reasons given display sloppy thinking-

"Despite involving consensual adults it is generally believed that all such behaviour is wrong and should be covered by the criminal law. Furthermore, there is evidence to suggest that some adult familial relationships are the result of long-term grooming by an older family member and the criminal law needs to protect adults from abuse in such circumstances.

45. It is certainly not generally believed that all such behaviour is wrong and should be covered by the criminal law. Even if it were, that is not in itself a reason for sending people to prison. Much more cogent reasoning is required to justify this proposed offence, which in any case should not be a blanket offence covering all types of sexual activity however trivial.35

46. Sex with mentally disabled 36 There is to be a new offence, carrying life imprisonment, of "Sexual activity with a person who did not, by

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reason of a learning disability or mental disorder, have the capacity to consent".37 I have already given the text of one letter by me objecting to this proposal.38 Here is another, which I sent to the Daily Telegraph on 22 November 2002 but was not published-

David Congdon of Mencap says he welcomes the Home Secretary's sex law reform proposals (letter November 22 2002). Then he makes two conflicting statements: (1) they are a victory for people with a learning disability; (2) they "will not infringe on people's rights to have a fulfilling sexual relationship". The white paper proposes (para. 62) that there should be a new criminal offence, with a maximum penalty of life imprisonment, of sexual activity with "a person who did not, by reason of a learning disability or mental disorder at that time, have the capacity to consent". There will thus be no possibility of such persons having "a fulfilling sexual relationship", or indeed any sexual relationship whatever, except with a criminal who risks life imprisonment. This can only add to the deprivation arising from their condition. It is an example of the sex-negative attitude which pervades the Bill. Attention is all on the exploiter seeking his own gratification. The possible needs of the other party are ignored, indeed denied. I have known for example such needs to be discreetly attended to by a sympathetic nurse. Is such a sympathiser now to risk imprisonment for life?

47. When this letter was shown to David Congdon, who is Head of External Relations at Mencap, he replied briefly that if say such a person had sexual relations say with someone also with such a disability, and where it was clear that it was not abuse, then the prosecuting authorities would not prosecute. The alternative he thought would be to provide an abuser's charter.

48. This again is muddled thinking. As stated above,39 it is improper to evade the difficulties of framing an offence accurately by relying on the CPS exercising their discretion not to prosecute. This is because

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the act in question, though ex hypothesi innocent, is still branded as criminal - which obviously it should not be. Again, why should the afflicted person be forced to consort only with another person similarly afflicted? Why should not sympathy - even love - be shown by one who does not suffer the disability? This again is sex-negative. Finally, the alternative is not necessarily to provide an abuser's charter. Speaking as an experienced parliamentary draftsman, I can say that it would be perfectly possible to frame an offence suitably limited to the cases which really ought to be penalised.

49. The maximum penalty for this offence is to be life imprisonment, the same as for murder. For another similar offence, "Obtaining sexual activity by inducement, threat or deception with a person who has a learning disability or mental disorder" the maximum penalty is also to be life imprisonment.40 I consider it to be grossly disproportionate, and a further sign of unhealthy sex-negativism, to allot the highest penalty possible to these two offences, bearing in mind that really serious cases could be treated as rape. I also question the need for the second offence, meant to deal with persons who are capable of giving consent to sexual activity but might be persuaded to do this by gifts or other inducements. Such persuasion is often employed in relations between normal people, and can be seen as part of usual courtship patterns. Once again we find the Bill threatening ordinary behaviour out of exaggerated fears fuelled by sex-negativism.

50. A further objectionable new offence is "Breach of a relationship of care".41 "This is necessary to protect those with a learning disability or mental disorder who have the capacity to consent but who are particularly vulnerable to exploitative behaviour and thus may agree to sexual activity solely because they are influenced by their familiarity with and dependency on the carer."42 This again is taking the nanny state far beyond the area where it has any business

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to intrude. The proper sanctions against misconduct here are moral and social rather then criminal.

51. Bestiality "Sexual activity with animals is generally recognised to be profoundly disturbed behaviour. A new offence of 'Bestiality' will criminalise those who sexually penetrate animals or allow an animal to penetrate them. This offence will complement existing non-sexual offences of cruelty to animals."43 The Daily Telegraph published the following letter from me on 10 December 2002-

Tom Utley (December 7 2002) pillories the sloppy thinking behind David Blunkett's white paper Protecting the Public, which proposes fundamental changes to our criminal law governing sexual behaviour. A nation's laws need to be based upon its accepted morals and values, yet on these the Bill is strangely silent. Blunkett's proposals are based on no discernible moral framework, which invalidates them at the outset. Utley alludes to paragraph 79 of the Bill, which introduces a new imprisonable offence of bestiality on no better basis than that sexual activity with animals "is generally recognised to be profoundly disturbed behaviour". This is the language of psychiatry, not criminal law.

52. In my book on secular sexual ethics THE SEX CODE: MORALS FOR MODERNS I suggested that it is contrary to the moral duty of respect for one's sexuality for a human being to have sex with an animal.44 I did not suggest that therefore this should be a criminal offence, additional to the offences relating to cruelty to animals. Tony Honoré, Regius Professor of Civil Law in the University of Oxford, said in his 1978 book Sex Law, that there is no satisfactory reason for including in modern law a crime of having sexual relations with an animal. He added that though the law books would be poorer if they ceased to mention Coke's great lady who supposedly had sex with a baboon and conceived by it, the crime of bestiality should be consigned to the scrapheap.

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53. Sexual interference with human remains The final paragraph of the white paper complains that there is currently no law that covers sexual interference with human remains, so it proposes to create one carrying a maximum penalty of two years imprisonment.45 The only justification given is that such conduct is "deviant". The defendant should be "treated and monitored as a sex offender both in prison and after release". Again, such strange behaviour seems to demand medical treatment rather than the full weight of the criminal law.

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* Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.

12. See the Bill, clauses 2, 4, 6, 8-32, 52-55, 76.

13. Cassell, 1993.

14. P. 109. See also para. 49 of Annex Two to this report and the detailed analysis in chapters 12 and 13 of The Sex Code.

15. Para. 49.

16. White paper, para. 50 as applied by para. 52. Emphasis added.

17. See Bennion on Statute Law (Longman, 3rd edn 1990), chap. 17.

18. For an account of the hideous damage those blinkered attitudes cause I refer once again to chapter 12 of The Sex Code."

19. “Understanding Sibling Incest”. Emphasis added.

20. See above, p. 11.

21. See para. 15 in Annex Two to this report.

22. See also para. 52.

23. See above, p. 12.

24. See in particular paras.7, 12 and 15 in Annex Two to this report.

25. See para. 8 in Annex Two to this report.

26. Commons Hansard 10 February 2000, quoted on Mr Hughes’s website.

27. Para. 50.

28. Bill, clause 17; white paper, para. 54.

29. See white paper, para. 55.

30. White paper, para. 58.

31. See white paper, paras. 56, 57.

32. Emphasis added.

33. Para. 57.

34. White paper, para. 59.

35. See para. 34 in Annex Two to this report.

36. Bill, clauses 33-51; white paper, para. 62.

37. Bill, clause 33.

38. See p. 10 above.

39. See p. 15.

40. Bill, clauses 38-42; white paper, para. 63.

41. Bill, clauses 43-51; white paper, para. 64.

42. White paper, para. 64.

43. White paper, para. 79. See Bill, clause 72.

44. See para. 14 in Annex Two to this report.

45. Para. 80. See Bill, clause 73.