2.5.3. FB's writings on the Sexual
Offences Act 2003
2.5.3.1.2. SEXUAL ETHICS AND
CRIMINAL LAW
Specific proposals in the Bill
20. Sex with children12
The Bill's proposals relating to sexual activity with a child,
that is a young person who has not yet attained the age of sixteen,
demonstrate the great danger involved in drawing up legislative
proposals concerning sex without first laying down the moral principles
that are to be followed. Antony Grey wrote in his book Speaking
of Sex13-
"Children are sexual beings.
Adolescents are highly sexual beings".14
21. That is obviously true,
and should be accepted as postulating a compelling guiding principle
when remodelling the laws governing sexual behaviour. Adolescence
begins well before the age of consent (sixteen), yet the Bill
insists it should be a criminal offence for anyone, even an age
mate, to engage in any sexual activity whatever, even though consensual,
with such a "highly sexual being" as an adolescent aged
under sixteen. I find it incredible that the Government should
really think this is the right way to proceed when laying down
our sex laws for the twenty-first century. No one who had read
and absorbed chapter 12 of THE SEX CODE could seriously
put forward such a sex-negative proposition as that. Anyone knows
who remembers their own childish consensual sex play, and sexual
experimenting and exploring with age mates, that such activities
are a universal and important part of everyone's growing-up. The
criminal law should not interfere with it. The criminal law should
have no part to play in it: nor should the state's social services.
Yet the white paper says that "where a person [of any age]
engages in sexual activity with the ostensible consent of the
child then one of two offences - "Adult sexual activity with
a child" or "Sexual activity between minors" -
can be charged.15
I go on to discuss these in reverse order.
22. Sexual activity between
minors This proposed criminal offence, punishable with up
to five years imprisonment, deals inter alia with sexual activity
between pubescents from eleven to fifteen. It "will cover
a range of behaviour including, for example, any activity with
a child that a reasonable person would deem to be sexual or indecent
in all the given circumstances. This will cover a range of behaviour,
including, for example, inducing a child to take off their clothes
in circumstances which would reasonably be considered as sexual
and outside the bounds of normal family life."16
23. The italicised words are
a giveaway. Consensual sex play between young siblings or friends
who are age mates, say within the age range eleven to fifteen
years, is considered by the Home Office to be outside the bounds
of normal family life. Or is it? Is the new law really going to
leave vital questions like this to be finally settled only after
years of delay and a final appeal to our highest court of justice,
the House of Lords? That would surely be a gross dereliction of
duty by Parliament - handing the final decision to non-elected
judges rather than deciding for themselves. Yet deliberate ambiguity
is often used in legislation when clarity might arouse dissent.17
It should not be so used in the present case, when so much depends
on being clear.
24. Much childish sex play
between consenting age mates is within the bounds of normal family
life. That is my view, but many would differ. I suspect that most
parents, scared by current propaganda in the media and elsewhere,
would indeed differ from that opinion. They would run away from
any display of sexuality by their supposedly innocent
little children.18
Yet if they only knew it, a child is incomplete without awareness
of its sexuality. Usually nature does not permit such ignorance.
We should respect nature, in this as other spheres.
25. A typical current attitude
to child sex is that shown in the following comment by the American
academic John Pesciallo-
For siblings close to the
same age, incest may merely be sexual exploration that is a part
of normal development but socially unacceptable or undesired.
However, when there is coercion or a significant age difference,
then it is considered abuse. Generally, the difference of five
or more years would constitute abuse by the older child (even
if the younger child were willing). Anytime an older sibling manipulates
a younger child into sexual behavior that is not age appropriate
or socially acceptable, it is sexual abuse.19
26. This is confused, even
contradictory, - and that is symptomatic of the chaotic attitudes
to this vexed topic. The italicised words suggest that something
that is part of normal development can nevertheless be socially
unacceptable or undesired. Yet if conduct is part of normal development
it obviously should not be socially unacceptable or undesired.
If nevertheless it is socially unacceptable or undesired then
obviously society has got things wrong, and its mistaken attitudes
should not be reflected in legislation enacting criminal offences.
27. The Bill shows many signs
that the Government is being by 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.
28. A further element is that
much public agitation in the sex field is driven by hysteria,
and is therefore unreliable as a basis for legislation. In this
connection I cite as just one example facing pages in the Daily
Telegraph for 15 January 2003. On page 22 Andrew Marr wrote-
"I can't be the only
one completely bemused by the paedophilia mania sweeping the country.
It cannot surely be that paedophilia is a new thing. So either
it has always been going on . . . or we are in the grip of something
like mass hysteria. Talking to older people . . . you hear of
a Britain in which child sex abuse - what they'd call 'mucking
about' - went on all the time . . . but was simply repressed,
ignored and certainly not publicly discussed . . . But are there
so many serious paedophiles about? I simply do not believe it."
29. On the facing page 23
the editorial said-
"As Andrew Marr writes
opposite, paedophilia mania is sweeping the land . . .This mania
prompted the ludicrous recent decision by Edinburgh City Council
to ban parents from making video recordings of their children's
Nativity plays without the consent of the parents of the whole
cast. It inspired the disgraceful campaign by Rebekah Wade . .
. to 'name and shame' convicted paedophiles in the pages of the
News of the World - a campaign that moved some of her
more moronic readers to attack the home of a paediatrician in
Newport. It has led some councils to insist that any parent who
offers to help out at a school fete must first be vetted by the
police."
30. These Government proposals
raise the question what lawful sexual outlets is it supposed that
pubescents in the age range eleven to fifteen should have? If
these borderline creatures are, as must be admitted, "highly
sexual beings",20
they obviously require suitable opportunities to fulfil their
sexuality.21
This could be called one of their human rights, if that topic
had been fully developed in the region of sexuality. While many
girls may, if unawakened sexually, happily continue in an "asexual"
condition until they reach the age of consent or later, this does
not apply to most boys. The Bill's proposals limit the lawful
sexual activity of pubescent boys to solitary masturbation, which
surely cannot be right. I believe it is horrifyingly wrong.
31. Here the Government's
defence might partly lie in para. 37 of the white paper22-
. . . in some circumstances,
particularly where the partners are close in age and apparently
agree to take part in sexual activity, it may be more appropriate
to pursue the matter through child protection rather than criminal
justice processes, out of concern for the welfare of both the
children involved. In other cases, even when both parties are
children, one may already have a history of abusive sexual behaviour
towards other children, which justifies the involvement of the
criminal law or his or her behaviour may have been sufficiently
exploitative or abusive to merit prosecution. The Crown Prosecution
Service already has discretion about whether prosecution is in
the public interest . .
32. This apparently applies
to all forms of sexual activity between children even where consensual
and free from objectionable features such as the infliction of
bodily harm (comparatively very rare). So it covers what is described
above as "sexual exploration that is a part of normal development".23
It is surely quite wrong that the police and Crown Prosecution
Service should be involved at all in such cases. The fact that
the CPS might eventually decide that it is not in the public interest
to proceed with a prosecution even though technically a crime
has been committed is no answer. The existence of this residual
CPS discretion should never be used as an excuse for labelling
conduct as criminal when truly it is not. The right of any citizen
to bring a private prosecution also has to be borne in mind here.
This right might be exercised for example by a spiteful neighbour.
33. Nor in such cases is it
"appropriate to pursue the matter through child protection
. . . processes". This still brands the children's conduct
as criminal, calling for intervention by state services. Such
intervention can do immense harm to the children, and is uncalled
for. It needs to be recognised and stated that such childish consensual
conduct is not in any way wrong, immoral or criminal. On the contrary
it is to be accepted and welcomed.24
Otherwise the child is inflicted with sex-guilt, a pernicious
and very common feature of the way we treat sexuality.25
This brings me back once again to the question of the undeclared
and apparently non-existent moral basis of the Government's proposals.
34. A final point on sexual
activity between age mates who are both under sixteen concerns
gay boys. When the Bill for the Sexual Offences (Amendment) Act
2000, which lowered the gay age of consent to sixteen, was going
through the House of Commons Mr Simon Hughes MP for the Liberal
Democrats made much play with the fact that clause 2 (later section
2 of the 2000 Act) removed the stigma of criminality, as he put
it, from under-16s who became involved in sexual activity with
a male homosexual over that age.26
The present Bill proposes to repeal section 2 without replacing
it. So that safeguard for gay boys will go. It is puzzling anyway
that it did not apply to protect a boy under sixteen who engaged
in consensual sexual activity with another under-age boy, which
as we all know very commonly happens.
35. Adult sexual activity
with a child According to the white paper this new criminal
offence, punishable with up to fourteen years imprisonment, will
cover "a range of behaviour including, for example, any activity
with a child that a reasonable person would deem to be sexual
or indecent in all the given circumstances."27
This sets the standard at that of the reasonable person, so often
used in our law - and used throughout this Bill. Here it is inappropriate
as a test simply because, as noted above, so many people are unreasonable
when it comes to sex. Putting it another way, in the grey area
there is no agreement on what would be "indecent in . . .
given circumstances". On the contrary if this question were
asked at random a wide variety of answers could be expected. That
is no proper basis for the criminal law.
36. The Bill does not apply
technical terms usually employed in this area, such as "paedophilia".
We might be thankful for that. One sign of the confusion the nation
is in over sexual relations between adults and the immature is
that in the media they are all covered by the blanket term "paedophilia".
This masks the fact that many very different types of action are
involved here, verging from the horrific to the trivial. Broadly
they are of three types. A paedophile is a man who is sexually
attracted by little children well below the age of puberty- usually
girls. A pederast is a man or youth (or occasionally a woman)
who is sexually attracted by handsome pubescent boys, good-looking
young males between the ages of eleven and fifteen who are just
beginning to ripen and bloom in their nascent sexuality. A third
type of man suffers from the Lolita syndrome, named after the
character in Vladimir Nabokov's 1955 novel of that name. This
draws him to nubile girls aged again between the ages of eleven
and fifteen, with whom he desires otherwise normal sexual intercourse.
Conduct so differently based demands carefully graduated responses,
but the Bill ignores these distinctions and applies a blanket
approach. That is one more ground for condemning it.
37. Grooming of children
Another new target is what the Bill calls sexual grooming of children,
which will have a maximum penalty of five years imprisonment.28
This new offence seems to be aimed at internet prowlers, but could
also apply in real life. The object is to catch adults who try
to make friends with children so as later to have sex with them.
Sex offenders with dire motives have, says the white paper, always
found ways of gaining the trust and confidence of children with
the object of abusing them sexually. The offence will only arise
"where it is clear that this is what the offender intends".
But how is that clear intention to be proved? If the suspect goes
on to carry out a sexual assault that can be charged as an offence
in itself, but there is then no need for the preliminary offence
of grooming. Where no assault later ensues how can preliminary
grooming be established? How do the acts in question differ from
what any kindly adult might do to befriend a child, who is perhaps
visibly in distress? Some people like children.
38. Here we have 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 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? If this pernicious
proposal is carried into law every teacher, church or charity
worker, every police officer or other person who sees a child
in need of comforting will shrink from administering that necessary
solace for fear it might be considered as "grooming".
This could apply to grandparents of the child, or other relatives.
It could even apply to parents themselves. The prospect is appalling.
It is a prime example of the cure being worse than the disease.
39. That is not all. It gets
worse. The Bill goes on to adumbrate a further hurdle for adults
wishing to befriend children.29
There will be introduced "a new civil order intended to protect
children under 16 from inappropriate sexual behaviour by adults
aged 18 or over". This will include any acting by the adult
"in such a way as to present a risk of sexual harm to children".
It will cover "explicit communication with children via email
or in chatrooms or hanging around schools or playgrounds".
The penalty for breach of the order will be a maximum of five
years imprisonment.
40. I acknowledge there is
a problem here. A comparatively minute proportion of adults do
indeed pursue children in this undesirable way. Yet we must all
preserve a sense of proportion. The best is the enemy of the good.
Under Gresham's law bad currency drives out sound. The Home Office
seem unaware of the terrible dangers of Gresham's law when introduced,
at this late day, into the realms of human sexual behaviour.
41. Familial sexual abuse
of a child30
Not content with the new offences outlined above, the Bill proceeds
to duplicate them by creating the further new offence of "Familial
sexual abuse of a child". It will protect children up to
the age of 18 from abuse by a "family" member of any
age. This will include all "who have a 'familial' relationship
with a child by virtue not only of blood-ties, adoption, fostering,
marriage or quasi-marital relationship but also by virtue of living
within the same household as the child and assuming a position
of trust or authority". The maximum penalty will be 14 years
imprisonment. My criticisms given above also apply here. This
proposed offence certainly over-eggs the pudding.
42. Mistaken belief in
child's age The Bill proposes changes in the law regarding
mistaken belief in a child's age.31
"For the offences of
abuse of a position of trust and familial sexual abuse of a child,
the defendant will have to prove that he held an honest and reasonable
belief in age if he is to be acquitted. We think it right to put
the onus on the defendant in these circumstances because the
defendant will normally know the child well and therefore the
child's age."32
43. As the white paper says33
this reverses two House of Lords decisions. It is astonishing.
There obviously ought not to be two different systems regarding
mistake in age, for some offences requiring the matter to be proved
by the prosecution beyond reasonable doubt and for others requiring
it to be proved by the defendant according to a different standard
of proof, the balance of probabilities. This is a recipe for unbounded
confusion and is inherently unjust. Furthermore it is unsound.
If it is proved that the defendant did indeed know the child well,
and therefore its age, the plea of ignorance is likely to be unconvincing
and therefore fail. If in fact the defendant, although in a position
of trust, did not in know the particular child well or at all
(as might happen) he should not be prejudiced just because "normally"
a person in that position would know the child well.
44. Prohibited adult sexual
relationships34
This offence, with a maximum penalty of two years imprisonment,
will cover sexual activity between certain adult "blood relatives".
The well-known term incest is for some unexplained reason dropped.
Again the reasons given display sloppy thinking-
"Despite involving consensual
adults it is generally believed that all such behaviour is wrong
and should be covered by the criminal law. Furthermore, there
is evidence to suggest that some adult familial relationships
are the result of long-term grooming by an older family member
and the criminal law needs to protect adults from abuse in such
circumstances.
45. It is certainly not generally
believed that all such behaviour is wrong and should be covered
by the criminal law. Even if it were, that is not in itself a
reason for sending people to prison. Much more cogent reasoning
is required to justify this proposed offence, which in any case
should not be a blanket offence covering all types of sexual activity
however trivial.35
46. Sex with mentally
disabled36
There is to be a new offence, carrying life imprisonment, of "Sexual
activity with a person who did not, by reason of a learning disability
or mental disorder, have the capacity to consent".37
I have already given the text of one letter by me objecting to
this proposal.38
Here is another, which I sent to the Daily Telegraph
on 22 November 2002 but was not published-
David Congdon of Mencap says
he welcomes the Home Secretary's sex law reform proposals (letter
November 22 2002). Then he makes two conflicting statements: (1)
they are a victory for people with a learning disability; (2)
they "will not infringe on people's rights to have a fulfilling
sexual relationship". The white paper proposes (para. 62)
that there should be a new criminal offence, with a maximum penalty
of life imprisonment, of sexual activity with "a person who
did not, by reason of a learning disability or mental disorder
at that time, have the capacity to consent". There will thus
be no possibility of such persons having "a fulfilling sexual
relationship", or indeed any sexual relationship whatever,
except with a criminal who risks life imprisonment. This can only
add to the deprivation arising from their condition. It is an
example of the sex-negative attitude which pervades the Bill.
Attention is all on the exploiter seeking his own gratification.
The possible needs of the other party are ignored, indeed denied.
I have known for example such needs to be discreetly attended
to by a sympathetic nurse. Is such a sympathiser now to risk imprisonment
for life?
47. When this letter was shown
to David Congdon, who is Head of External Relations at Mencap,
he replied briefly that if say such a person had sexual relations
say with someone also with such a disability, and where it was
clear that it was not abuse, then the prosecuting authorities
would not prosecute. The alternative he thought would be to provide
an abuser's charter.
48. This again is muddled
thinking. As stated above,39
it is improper to evade the difficulties of framing an offence
accurately by relying on the CPS exercising their discretion not
to prosecute. This is because the act in question, though ex
hypothesi innocent, is still branded as criminal - which
obviously it should not be. Again, why should the afflicted person
be forced to consort only with another person similarly afflicted?
Why should not sympathy - even love - be shown by one who does
not suffer the disability? This again is sex-negative. Finally,
the alternative is not necessarily to provide an abuser's charter.
Speaking as an experienced parliamentary draftsman, I can say
that it would be perfectly possible to frame an offence suitably
limited to the cases which really ought to be penalised.
49. The maximum penalty for
this offence is to be life imprisonment, the same as for murder.
For another similar offence, "Obtaining sexual activity by
inducement, threat or deception with a person who has a learning
disability or mental disorder" the maximum penalty is also
to be life imprisonment.40
I consider it to be grossly disproportionate, and a further sign
of unhealthy sex-negativism, to allot the highest penalty possible
to these two offences, bearing in mind that really serious cases
could be treated as rape. I also question the need for the second
offence, meant to deal with persons who are capable of giving
consent to sexual activity but might be persuaded to do this by
gifts or other inducements. Such persuasion is often employed
in relations between normal people, and can be seen as part of
usual courtship patterns. Once again we find the Bill threatening
ordinary behaviour out of exaggerated fears fuelled by sex-negativism.
50. A further objectionable
new offence is "Breach of a relationship of care".41
"This is necessary to protect those with a learning disability
or mental disorder who have the capacity to consent but who are
particularly vulnerable to exploitative behaviour and thus may
agree to sexual activity solely because they are influenced by
their familiarity with and dependency on the carer."42
This again is taking the nanny state far beyond the area where
it has any business to intrude. The proper sanctions against misconduct
here are moral and social rather then criminal.
51. Bestiality "Sexual
activity with animals is generally recognised to be profoundly
disturbed behaviour. A new offence of 'Bestiality' will criminalise
those who sexually penetrate animals or allow an animal to penetrate
them. This offence will complement existing non-sexual offences
of cruelty to animals."43
The Daily Telegraph published the following letter from me
on 10 December 2002-
Tom Utley (December 7 2002)
pillories the sloppy thinking behind David Blunkett's white paper
Protecting the Public, which proposes fundamental changes
to our criminal law governing sexual behaviour. A nation's laws
need to be based upon its accepted morals and values, yet on these
the Bill is strangely silent. Blunkett's proposals are based on
no discernible moral framework, which invalidates them at the
outset. Utley alludes to paragraph 79 of the Bill, which introduces
a new imprisonable offence of bestiality on no better basis than
that sexual activity with animals "is generally recognised
to be profoundly disturbed behaviour". This is the language
of psychiatry, not criminal law.
52. In my book on secular
sexual ethics THE SEX CODE: MORALS FOR MODERNS I suggested
that it is contrary to the moral duty of respect for one's sexuality
for a human being to have sex with an animal.44
I did not suggest that therefore this should be a criminal offence,
additional to the offences relating to cruelty to animals. Tony
Honoré, Regius Professor of Civil Law in the University
of Oxford, said in his 1978 book Sex Law, that there
is no satisfactory reason for including in modern law a crime
of having sexual relations with an animal. He added that though
the law books would be poorer if they ceased to mention Coke's
great lady who supposedly had sex with a baboon and conceived
by it, the crime of bestiality should be consigned to the scrapheap.
53. Sexual interference
with human remains The final paragraph of the white paper
complains that there is currently no law that covers sexual interference
with human remains, so it proposes to create one carrying a maximum
penalty of two years imprisonment.45
The only justification given is that such conduct is "deviant".
The defendant should be "treated and monitored as a sex offender
both in prison and after release". Again, such strange behaviour
seems to demand medical treatment rather than the full weight
of the criminal law.
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