2.5.3. FB's writings on the Sexual
Offences Act 2003
2.5.3.1.2. SEXUAL ETHICS AND
CRIMINAL LAW
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 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 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 20009-
Martin Bowley QC (article
July 28 2000, page 1134) seems complacent about Setting the
Boundaries, the report of his Home 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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