Chapter 1

 

Proposed Amendments to Sexual Offences Bill

 

Clause 14 of the Sexual Offences Bill 2003 [now section 13 of the Act] is worded as follows-

 

(1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 10 to 13 [now 9 to 12] [14] if he were aged 18.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

 

I propose the following amendments to the Bill-

 

1. Omit clause 14.

 

2. Instead, amend clause 10 so that it reads-

 

(1) A person (A) commits an offence if-

(a) he intentionally touches another person (B),

(b) the touching is sexual, and

(c) either—

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(2) Subsection (1) does not apply if-

(a) A is under 16, and

(b) B is not under [13] and consents to what A does, and

(c) A’s act does not cause injury or disease to B or (where B is a female) lead to her becoming pregnant,

and for the purposes of paragraph (b) of this subsection B shall not be taken to lack capacity to consent merely by reason of his age 15] .

(3) A person guilty of an offence under this section is liable-

(a) if under 18 at the time of the offence-

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 5 years;

(b) in any other case, on conviction on indictment to imprisonment for a term not exceeding 14 years.

 

3. Amend clauses 11-13 in the same way as clause 10 is amended by 2 above.

 

4. Amend clause 79 [section 78] so that it reads ‘For the purposes of this Part, penetration, touching, or any other activity by a person is sexual if carried out with a view to the gratification of that person’s sexual appetites’.

EXPLANATION OF PROPOSED AMENDMENTS

 

The first three amendments provide a different way of doing what clause 14 [section 13] at present does. The main difference is that a consensual act would be excluded if B were aged 13, 14 or 15. (I would prefer the exclusion to extend to 12-year olds as well because nowadays many children reach puberty while they are 12 and the real barrier line is arrival at puberty.) Pubescents should not be subject to the criminal law for consensual sexual behaviour between themselves, provided the consent is genuine. However the exception would not operate if A’s act injures B, transmits disease, or (where B is a female) causes her to become pregnant. In such a case it would be right for A to be treated as committing an offence.

 

The words ‘and for the purposes of this subsection B shall not be taken to lack capacity to consent merely by reason of his age’ recognise that one should not automatically assume that just because a child’s calendar age is say 13 years and three months he or she necessarily lacks the capacity to consent. The question would arise in each case of whether B, at the time in question was in fact mature enough to give true consent. The onus would be on the prosecution to prove beyond reasonable doubt that an apparent consent was not genuine. It may be that these words are not strictly necessary. Mr Dominic Grieve pointed out in Standing Committee that-

 

‘. . . it is possible for someone under the age of 16 to consent to rape, thereby reducing it to the alternative offence, which is a sexual act to which no consent can be given . . . So if one has sexual intercourse with a 14-year-old, it may be possible to escape the full penalty of the law, but there is no possibility of that 14-year-old consenting to much lesser behaviour, even though she may consent to the more serious one.’ [16]

 

Mr Grieve is saying that if A is charged under clause 1 of the Bill [section 1] with rape of B, a child aged 13, 14 or 15, it is a defence to show that B consented. It thus seems to be inherent in the Bill that a B who is of that age may under the ethos of the Bill be capable of consenting without the addition of words such as these. [17] Here it also needs to be remembered that in other contexts the law treats children under 16 as able to consent. [18]

 

If desired, it would of course be simple to exclude one or more of clauses 10-13 from the effect of the amendments. Thus it might be thought desirable not to apply them to clause 13 (causing a child to watch a sexual act).

 

The Government might object to the amendments on the ground that they undermine the general age of consent (16). However any age of consent provision is essentially artificial and arbitrary, imposing the philosophy of ‘one size fits all’. Other countries have different arbitrary consent ages. Denmark, France, Greece and Sweden have 15, Austria and Italy have 14, Spain has 12. [19] Northern Ireland on the other hand has 17. [20] Until 1929 the minimum age for marriage in England and Wales was 12. [21] It is not logically inappropriate to say that the 16 age limit applies where the older participant is over 16, while other provisions may apply where both are under 16. Anyway, a principle should not be allowed to stand in the way of justice.

 

A further reason for omitting clause 14 [section 13] is that it is based on a faulty concept. To say that a person of say 11 commits an offence if he does anything which would be an offence under any of sections 10 to 13 if he were aged 18 is to postulate an unreal, indeed impossible, hypothesis. An offence consists of both a physical and a mental component. The physical component may be the same for both ages but the mental state of an eleven-year old can never be the same as that of an adult. [22]

 

The final amendment would amend clause 79 [section 78] for the reasons given in chapter 8 below.