Lester Publishing, 2003

Doc. No. 2003.001

SEXUAL ETHICS AND CRIMINAL LAW

FRANCIS BENNION*

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Drafting points on the Bill

54. Monosexual drafting The Bill runs to 128 clauses and five Schedules (87 pages). The first point to strike one about the drafting is that, as always in the British tradition, it is resolutely monosexual. It is high time this tradition was abandoned in favour of sexless drafting, which is what we are now accustomed to in all other fields. In a Bill entirely concerned with sex it is grotesque that the language employed should suggest that males are the only people with which it is concerned.

55. Meaning of "sexual" A common formulation in the Bill is that a person commits an offence "if he (a) engages in an activity, and (b) the activity is sexual".46 One wonders why the simpler form "if he engages in a sexual activity" was not used - or even "if he commits a sex act". This vital word "sexual" is the subject of an elaborate definition.47 This definition is so important that I must set it out here.

For the purposes of this Part, penetration, touching, or any other activity is sexual if-
(a) from its nature, a reasonable person would consider that it may (at least) be sexual, and
(b) a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.

56. This is legislative drafting at its most desperate (though one has every sympathy with the driven drafter). What can be the meaning of "it may (at least) be sexual"? Does this complex definition mean anything more than "an activity is sexual if a reasonable person would consider it sexual?" If not, it gets us no farther. Here it is worth noting that the Oxford English Dictionary (2nd edn) has no fewer than six quite different definitions of the adjective "sexual".

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The Bill's elaborate definition gets us no nearer grasping which of the six is intended here. We are forced to turn for guidance to the official explanatory notes.

Clause 80 defines "sexual" for the purposes of this Part. This definition is relevant to many of the offences under this Part. For example, clause 3(1)(b) refers to penetration which is sexual and clause 9(1)(b) refers to touching which is sexual. Paragraph (a) requires the reasonable person to look at the nature of the activity in question. If, from looking at the nature of the activity, it would not occur to the reasonable person that it would be sexual, it does not meet the test, even if a particular individual may obtain sexual gratification from carrying out the activity. The effect of this is that obscure fetishes do not fall within the definition of sexual activity. The nature of some activities is such that they are obviously sexual, such as sexual intercourse, and they would meet the test. Other activities may or may not be sexual depending on the circumstances and the intentions of the people carrying them out, for example, digital penetration of the vagina may be sexual or may be carried out for a medical reason. These activities would meet the test in paragraph (a) since the reasonable person need only think that the activities may be sexual; he does not need to come to any conclusion about the matter. Activities which meet the test in paragraph (a) must then be considered under paragraph (b). In order to assess whether the activity is sexual, the reasonable person must look at any or all of the following factors: the nature of the activity; the circumstances in which the activity is carried out; and the purpose of any of the participants. Where the activity is, for example, oral sex, it seems likely that the reasonable person would only need to consider the nature of the activity to determine that it is sexual. But where it is digital penetration of the vagina, the reasonable person would need to consider the nature of the activity (it may or may not be sexual), the circumstances in which it is carried out (if it is in a doctor's surgery, it is probably not sexual) and the purpose of any of the participants (if the doctor's purpose is medical, the

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activity will not be sexual; if the doctor's purpose is sexual, it will be sexual).

57. This weighty note overlooks the point made above that there are many meanings of "sexual". Under some of them a doctor's digital penetration of the vagina for purely medical reasons would certainly be termed sexual, since it relates to the sexual organs of the patient. We see that the Bill's definition of "sexual" is useless unless you also have the explanatory note. That should not be the case, because most users of the intended Act will not have that note. Anyway the preface to the explanatory notes is at pains to point out that they have no authority, and should not be relied on.

58. We have here yet another example of the sex-negative nature of these proposals. What the Bill means by "sexual" is having to do with sexual desire and what in some places it calls sexual gratification. Yet it is afraid to say so.

59. Marriage Several provisions of the Bill remove penalties on persons aged between sixteen and eighteen if they are married.48 Under present social conditions to treat a person as a criminal who is living in a settled relationship akin to marriage, where he or she would not be treated as a criminal for the same act if married is illogical and unjust.

60. Overlapping offences The Bill lays down offences or groups of offences which wholly or partially overlap with other offences or groups of offences. Thus clause 3 (assault by penetration) and clause 5 (sexual assault) overlap with clause 1 (rape) and with each other. This is a frequent occurrence in the Bill. It is confusing to have these overlaps, which are unnecessary. They could easily be avoided by suitable drafting.

61. Unnecessary complexity In an effort to dot every i and cross every t the Bill engages in unnecessary complication. For example, can as many as nineteen clauses really be needed to deal with sexual abuse

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of the disabled?49 When dealing with their care workers alone the Bill takes up no less than nine of these clauses. Sledgehammers and nuts come to mind.

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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.

46. See e.g. Bill, clause 10.

47. See Bill, clause 80. In Commons, 79

48. See clauses 16, 25, 31 and 49.

49. See clauses 33-51.