Lester Publishing, 2003

Doc. No. 2003.001

SEXUAL ETHICS AND CRIMINAL LAW

FRANCIS BENNION*

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Introductory

1. The Sex Hate Bill? This report sets out some objections to proposals contained in Part I (Sexual Offences) of the Sexual Offences Bill introduced by the Government into the House of Lords on 28 January 2003. In the main, the Bill extends only to England and Wales. The objections presented here are not exhaustive; many more could have been put forward. However it has been necessary to put together this report in haste, so that it might be available to peers considering the Bill on second reading. It therefore had to be sent for printing only three days after the Bill was introduced.

2. The following remarks are based on the fundamental proposition laid down in my book THE SEX CODE: MORALS FOR MODERNS 1 that sex positivism or the happy acceptance of human sexuality, seeking its fulfilment, is largely absent from our society - even though it is essential for human happiness. Directly or indirectly, that absence of sex positivism is the root cause of most of the sex crimes that trouble us. Do the Government acknowledge this, and investigate that cause with a view to its removal? The answer is no. Instead they offer us this deeply flawed Bill.

3. My basic objection to the Bill is that much of it is fuelled by public hysteria 2 and founded on what might be termed a Victorian spinster’s view of sex, namely that it is frightening, horrendous, and fit only for life with one’s head beneath the bedclothes desperately hoping no wicked man will approach. I do not make that complaint lightly. The essential fuel of the deficiencies put forward in this report is what is called sex negativism – or even sex hate. One might plausibly call this pathetic effort the Sex Hate Bill.

4. The nature of sexuality Let us pause for a moment and ask an

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essential question. What really does our sexuality amount to? It is the force that impels the human race to reproduce itself, for otherwise it would die out. It achieves this by making orgasms pleasurable, though pleasure is not truly the criterion. What I am concerned with, when it comes to sex, is the solemn fact that this is the way the human race goes on into the future. For that reason alone, sex demands respect. What we are discussing here goes far beyond mere fleshly pleasure, or what the Bill sneeringly calls sexual gratification.3

5. Unhappily failure to grasp the truth of that has led some, notably in this Bill, to treat sex with a twisted, even grotesque, significance. They think that children, if merely touched by sex, are somehow thereby irredeemably scarred and marred. Yet the truth is that children are far more robust than that. They need to be, for they like all of us are sexual creatures - and sex needs toughness.

6. We should not altogether blame the Home Office, sponsors of the Bill, for its crass approach. It is the way the vast majority of the British people see sex, at least when they have reached middle age. Yet what truly mars many children who encounter sex even in a non-violent, consenting, way is the horrified attitudes to this occurrence of the adults around them. The grown-ups raise their hands and shriek, so the poor innocent terrified children are damaged – often for life. It is not sexual acts that mar them, but the stupid unknowing hysterical attitudes of the adults who rule their lives. So the cycle continues . . .

7. If left alone, infants by themselves harmlessly arrive at the truth about sex. They perceive it as a part of life, like hunger, thirst, wonder, and enquiry. A developing, growing part, which they master bit by bit. Not in any way obnoxious or to be shunned, but just an aspect of the way things are. No primitive community is troubled by sex. Why should we who think ourselves have to trail so far behind them?

8. Unhappily in our community adults come along, very early in life, to knock the natural sensible attitudes out of the heads of the

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poor children – with the intention of making them suffer. Sex hate is the cause of their suffering, and sex hate is what we are up against when it comes to this Bill.

9. It is not usual to combine treatment of a Government Bill with a literary legacy such as the writings of Shakespeare. This is regrettable. Our public affairs need all the help they can get, and much help is to be got from our literary heritage. But still there is the great divide of custom. Leaping this, I venture to quote Shakespeare in the present context of the need to fight those who would wrong sex-

Diseases desperate grown

By desperate appliance are relieved,

Or not at all.4

10. Of course I acknowledge the deviant urges that drive sex offenders, while deeply regretting the absence of any Government initiative to investigate their causes, and possible cures. It would be useful to probe what impels sex offenders to do what lamentably they do. Governments often bypass the obviously useful, and have done so in this case, drearily repeating long-accustomed patterns.

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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.

1. Weidenfeld & Nicolson 1991. Extracts from reviews of the book are set out in Annex One to this report.

2. See pp. 7, 14-16 below.

3. See, e.g., clause 13.

4. 4. Hamlet IV.3.