Lester Publishing, 2003

Doc. No. 2003.001

SEXUAL ETHICS AND CRIMINAL LAW

FRANCIS BENNION*

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Law and ethics

11. No ethical basis A primary objection to the Bill is that the Government's proposals are not based on any discernible system of morals and values. They are grounded in a low view of human sexuality. They display sex-negativism - or even sex hate - in many obvious or indirect ways. While some sexual acts are obviously immoral and criminal, the vast majority are innocent and healthy A few others are on the borderline. Here there is a grey area, which needs to be addressed very carefully by those who lay down the criminal law for our nation. The proposals in the Bill fail to do that. If implemented they are likely to cause much unnecessary suffering and unhappiness. They ignore the essential point made in the couplet set out on a preliminary page of this report. They are opposed to sex positivism and are therefore unsound.

12. The Bill proposes fundamental changes to the criminal law governing how our people should behave sexually. A nation's laws, particularly its sex laws, need to be based upon accepted morals and values: what other sound basis could there be? Law does not (or should not) operate in a moral vacuum. Its function is to uphold agreed norms. So a proposed new law, particularly a sex law, must be assessed by reference to these. Yet on this question of a basis of agreed common morality the Bill is strangely silent, as was the white paper on which it is based.5

13. A large number of ethical propositions in the sex field would command general acceptance in most societies (e.g. rape is immoral). The difficult area is where there is no general agreement (e.g. incest by consenting adults is/is not immoral). It is particularly in the latter grey area that those proposing a new criminal law need

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to be clear about their ethical foundation. Total absence of any such clarity is the principal defect of this Bill.

14. The Bill proposes not one new sex crime but many. In fact there are no fewer than fifty-seven varieties of new sexual offences contained in the Bill. Some, but not many, replace existing offences that would be abolished by it. Various current enactments laying down when human sexual behaviour in England and Wales is to be treated as criminal, many dating from the distant past, are to be swept away.6 The Bill introduces a much larger raft of new criminal offences to replace them, which in turn is likely to subsist on our statute book for many years to come. So the promulgation of the Bill is an important development in the life of our nation, which we need to judge with close attention and a great deal of caution. Sex is a vital matter for every human being, and we must not get it wrong in this enterprise. The criminal law has coercive effect. People who fall foul of it may be imprisoned for many years. Even if that does not happen, they may lose their reputation and standing in the community. So we have to be very careful here. This is no light enterprise.

15. One problem with testing the Bill against our nation's morals and values, as emphatically needs to be done, is that the nation is now multicultural. This means those among its people have many different sets of morals and values, some directly opposed to one another. Many are based on various religions, mainly Christian, Muslim, Hindu or Jewish. Yet the majority of our people are not close adherents of any particular faith and would be classed by an impartial assessor as secular in their values. In a democracy the majority must prevail, which indicates that the Government's proposed new sex laws should be based upon secular, rather than religious, ideals and ethics. Moreover they should be western secular values, since those are the ones held by the vast majority of British citizens.

16. The only general basis I can detect for the Bill's proposals is derived

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from the white paper. This suggests that they deal with conduct which the Home Office concludes is "unacceptable".7 That is a weasel word, elastic and varying. It at once demands the question "unacceptable to whom?". This the white paper does not attempt to answer. If it means "unacceptable to the majority" that is not good enough. To rank as a crime, sexual conduct needs to be far worse than merely unacceptable to the majority. It needs to be vile and vicious. That does not apply to many of the actions branded as criminal by this Bill.

17. We see that the Home Office's pragmatic unprincipled approach is not a good enough basis when the matter is so important for our nation and every individual in it. These changes in our law need to be closely assessed morally in order to be justified. So far, that form of validation is not seen to be present in Home Office thinking. Its absence is alone enough to undermine confidence in the Bill's proposals.

18. In this vacuum I feel bound to fall back on the moral precepts set forth in THE SEX CODE.8 Although some people may have reservations about certain things said in that book I believe it presents on the whole a convincing account of western secular sexual ethics in our time. The basis of the book is a code of sixty ethical principles. Certain of these, set out in Annex Two to this report, are peculiarly relevant to the proposals in the Bill. When reading them it is important to bear in mind that each principle is considerably amplified in the book itself, to which reference should where necessary be made.

19. I drew the Home Office's attention to the book in the following letter published in the New Law Journal in August 2000 9 -

Martin Bowley QC (article July 28 2000, page 1134) seems complacent about Setting the Boundaries, the report of his Home

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Office group on reforming sex offences law.10 He thinks that regardless of responses received during the consultation period its recommendations should form the basis for a new Sexual Offences Act. I wonder? Judging from his account, the report seems redolent of the sex negativism condemned in my book THE SEX CODE.

Here is just one example. The report proposes "a specific offence of sexual activity with a person with such severe mental disability that there is no capacity to consent to sexual relations". The effect of this would be that such a person, in addition to the suffering arising from his or her mental condition, would be permanently deprived of lawful sexual fulfilment. Obviously the researches undertaken by Mr Bowley's group did not extend to the lengthy treatment my book gave to this point, ending with the following conclusion:

"Apparent consent by a mentally incapacitated person to a sexual act cannot be taken as true consent where the incapacity is too great to permit the person to understand the full emotional and ethical significance of the act. Where however such a person would otherwise be condemned to involuntary celibacy or chastity it is not immoral to afford them sexual fulfilment with no more than their apparent consent, since in such circumstances the usual requirement of true consent is prevented from applying."11

Mr Bowley and his colleagues might like to be glancing through my book, which was an attempt to frame a code of modern secular sexual ethics. Ethics must always underlie 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.

5. Protecting the Public, subtitled “Strengthening protection against sex offenders and reforming the law on sexual matters” (CM 5668). This document, published in November 2002, is referred to below as the white paper."

6. See Schedule 5 to the Bill.

7. See, e.g., paras. 9 and 14.

8. See footnote 1.

9. 150 NLJ 1218.

10. The white paper on which the Bill is based was in turn based on Setting the Boundaries (2000) and Review of Part I of the Sex Offenders Act 1997 (2001).

11. See para. 18 in Annex Two to this report.