Introduction

In the grip of the Zeitgeist or spirit of the age we of the twenty-first century find ourselves subject to a drastic reversal in sexual mores [1] . To object nowadays to buggery, the act which used to be characterised as unfit to be mentioned among decent people, is to lay oneself open to a charge of homophobia, a word freshly invented for the purpose. Another newly-invented word, racism, lies in wait to denigrate those who prefer their sexual partner to be of the same ethnic origin as themselves. The sin of Onan, not long ago known as self-abuse, is now regarded as a worthy means of self-expression. [2] Enlightment has not gone all the way however.

Still we refuse to recognise the sexual needs of the under-16s when solitary or interacting with age mates. Of course the sexualised tot, ruined by prolonged abuse, is a horrific spectacle. But for the ordinary child who has embarked on puberty, a natural process essentially sexual, the position is different. We adults should not be so quick to forget our own passage through those troubled waters, or those childish who perhaps added to our happiness when doing so. Of course, as I have said, there are dangers even with childish sex play between age mates. I give the following true-life example as an awful warning.

Katy was 10 when she was referred by a social services department because it had become clear some months previously that she was extensively involved in sexual activities with other children. After having been removed from her own family because of extensive abuse and neglect, she had been placed in a variety of different contexts, finally being placed for adoption. This had broken down and at the time of referral she was placed with experienced professional foster parents. After her sexual activities had been noted, investigation revealed that in her short life she had been involved in sexually-abusive incidents with approximately 29 children . . . The therapeutic task was to help her regain her childhood.[3]

No one would doubt that such excessive sexual activity between age mates should have been dealt with by the social services long before poor Katy got to that point in her young life. It does not follow even in that extreme case that her colluding age mates should have been charged with criminal offences and hauled before a criminal court. Yet that is what the Sexual Offences Act 2003 provides for. In the hope that the Bill for the Act would be suitably amended before it was too late, I spent a lot of my time, effort and money in producing the first two editions of this Briefing. The first edition ran to 34 pages. The second edition was very much longer - but still not long enough to embrace all aspects of a difficult subject. This edition merely alters the second edition to fit it to the New Act and also adds three new chapters at the end.

 

I have concentrated on section 13 of the Act, which makes anyone between the ages of 10 (the minimum age of criminal responsibility) and 16 (the age of consent) guilty of a criminal offence if they carry out a sexual act on another child between those ages, even consensually. The maximum penalty is five years imprisonment. [4] This is not the only objectionable provision in the Bill. Clause 7 renders a child between 10 and 16 guilty of an offence subject to imprisonment for 14 years if he or she touches sexually a child under 13 even with that child’s consent. There are other objectionable features. Mr Humfrey Malins MP (Conservative) said in standing committee-

 

Clauses 6 to 9 [now sections 7 to 10], but particularly clauses 6 to 8, will create very serious offences relating to people who perform sexual acts with children under 13. That makes sense to all of us when the defendant is older than the victim, but does it make sense when the defendant is the same age or much the same age as the victim? Perhaps not. Let me give some examples. If a boy and girl aged 12 indulge in French kissing to which each consents, they will be committing an offence under clause 8. If a boy fondles a girl sexually over her clothes, or vice versa, both will be committing a sexual offence under clause 8 [section 9], and that offence will be punishable by 14 years imprisonment. I am not being flippant, but if two 12-and-a-half-year-old boys relieve the boredom of their first year at boarding school by indulging in mutual masturbation - which has happened - a serious offence will have taken place. If, at the suggestion of a girl aged 12, a boy of the same age puts his finger into her vagina, the boy will be committing an offence punishable under clause 7 by imprisonment for life. We think that that is a preposterous proposition, for the reasons I have outlined. [5]

 

Clause 6 fell foul of the parliamentary Joint Committee on Human Rights, which said-

 

In our view, the Government has not established that the impact of clause 6 of the Sexual Offences Bill, imposing liability on children under 13 for all sexual touching whether or not there is consent and whether or not it can properly be regarded as indecent, would be proportionate to a legitimate aim so as to be justifiable under ECHR Article 8.2. The offence seems to us to be over-broad, to impose liability in a way that is not adequately tailored to the legitimate objective, to interfere with the right to respect for private life more than is necessary for that purpose in a democratic society, and to contain insufficient safeguards against violation of the rights. [6]

 

The Family Planning Association (fpa) joined in the condemnation.

 

fpa’s major concern about this Bill is that it makes all consenting sexual activity between children, from full sexual intercourse to touching someone through clothes, a criminal offence. At the most extreme, this means that a 12 year-old boy who has sexual intercourse initiated by a girl his age will be automatically guilty of the offence of rape of a child under clause 6, carrying the maximum penalty of life imprisonment. At the other end of the spectrum, two 15 year-olds who indulge in consensual ‘sexual touching’, which includes kissing, will both also be automatically committing criminal offences under clause 10, imprisonable for up to five years. fpa believes that the Bill should be amended to permit the defence of consent to those who have ‘proximity of age’ – specifically, the defence should be allowed for under-16s who have sex with under-13s, and for under-18s who have sex with under-16s. [7]

 

I have added my own arguments against this horrifying intention to make criminals of the nation’s children. [8] There are signs that all this pressure on the Government might have an effect. On clause 14 [section 13] the Home Secretary Mr David Blunkett made out that the Government would remove the objectionable features if only they knew how to draft the necessary amendment.

 

Mr. Blunkett: I make this generous offer: I will buy a flagon of champagne for anyone who comes up with a satisfactory answer. [Hon. Members: ‘A flagon?’] Not a flagon -

 

The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): A magnum.

 

Mr. Blunkett: Well, those who come from the north of England need civilising, don’t they? We will settle for a magnum of champagne. The hon. Gentleman is entirely right: it is an ass, but we have to deal with the ass by providing a carrot, rather than a stick. [9]

 

As a former legislative draftsman I responded to Mr Blunkett’s carrot. [10] I sent him the result, but there was no sign of my magnum.

 

This Briefing also contains an elaborate account of just how clause 14 [section 13] works. [11] It gives considerable space to exposing a drafting flaw in clause 14 and suggests a solution. [12] It also exposes flaws in the drafting of clause 79 [section 78]. This supplies a definition of the term ‘sexual’ which occurs throughout the Act. [13] The Briefing contains other material designed to assist understanding of these iniquitous provisions which criminalize our children.