Lester Publishing, 2003

Doc. No. 2003.001

SEXUAL ETHICS AND CRIMINAL LAW

FRANCIS BENNION*

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Summary

62. I accept, having been one myself, that the Bill was conscientiously put together by competent higher civil servants. However the downside is that they were acting under the influence and advice of do-gooding voluntary bodies or NGOs, each solely concerned with its own clientele. Children's NGOs think the child should be sacrosanct. Disabled NGOs think the smitten should be shrink-wrapped. Animal NGOs think their beastly clients should have no contact with human sexuality. And so on. All such bodies think only of their own clients, and ignore the humans those clients engage with. Our country must not act blindly on the findings of this conglomeration where the vital matter of sex is concerned, especially when they take the negative view of our sexuality that emerges from the Bill.

63. In my book THE SEX CODE suggest that sex positivism, largely absent from our society, is essential for human happiness. If you search the world wide web for "sex positive" you will find many campaigning sites, but almost all are in the United States. Here in Britain we remain resolutely sex negative, as the Bill shows.

64. A nation's laws, particularly its sex laws, need to be based upon accepted morals and values. Law does not (or should not) operate in a moral vacuum. Its function is to uphold agreed norms, so a proposed new law must be assessed by reference to these. Yet on this question of a basis of common morality the Bill and white paper are strangely silent.

65. The majority of our people are not close adherents of any particular religion, being secular in their values. They are western values, so these are what should prevail when we recast our sex laws. However the white paper is not based on any ethical system. It merely looks to what is thought to be "unacceptable". Yet to rank as a crime, sexual conduct needs to be far worse than "unacceptable". It needs to be vile and vicious.

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66. The Bill's proposals relating to sexual activity with a young person under the age of sixteen demonstrate the great danger involved in drawing up legislative proposals about sex without first laying down the governing moral principles. It insists that for a child to engage in any sexual activity with an age mate, even though consensual, is to be a crime punishable with up to five years imprisonment. So when two pubescent children in the age range eleven to fifteen explore each other's bodies, in the way we have all done in our time, they are to be branded as criminals - however trivial their behaviour. The fact that trivial behaviour is unlikely to be prosecuted, or even to attract the attention of the social services, is irrelevant. If the law brands what they innocently do as criminal there is a risk of the law being activated - even if only by a spiteful private prosecutor.

67. The white paper shows many signs that the Home Office is here being 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.

68. These Government proposals raise the question what lawful sexual outlets pubescents in the age range eleven to fifteen should have? If these borderline creatures are, as must be admitted, highly sexual beings they obviously need suitable opportunities to fulfil their sexuality. This could be called one of their human rights, if that topic had been fully developed in the region of sexuality. Yet the white paper ignores this aspect. It sets the standard as that of the reasonable person. We all know that most people are unreasonable when it comes to sex.

69. The white paper forbids what it calls grooming of children. Here we have yet 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

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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?

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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.