Chapter 4

 

Extracts from ‘Sexual Ethics and Criminal Law’

The following extracts are taken from my short book on the Sexual Offences Bill 2003 entitled Sexual Ethics and Criminal Law [29] .

1. Sex with children [30] 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 Sex [31] -

‘Children are sexual beings. Adolescents are highly sexual beings’. [32]

2.       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 my book 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. [33] I go on to discuss these in reverse order.

3.       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.’ [34]

4.       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. [35] It should not be so used in the present case, when so much depends on being clear.

5.       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. [36] 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.

6.       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. [37]

7.       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.

8.       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.

9.       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.’

10.   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.’

11.   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’, [38] they obviously require suitable opportunities to fulfil their sexuality. [39] 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.

12.   Here the Government’s defence might partly lie in para. 37 of the white paper [40] -

. . . 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 . . .

13.   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’. [41] 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.

14.   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. [42] Otherwise the child is inflicted with sex-guilt, a pernicious and very common feature of the way we treat sexuality. [43] This brings me back once again to the question of the undeclared and apparently non-existent moral basis of the Government’s proposals.

15.   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. [44] 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.