2.5.3. FB's writings on the Sexual
Offences Act 2003
2.5.3.1.2. SEXUAL ETHICS AND
CRIMINAL LAW
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". 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 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 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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