Meaning of ‘sexual’ (clause
79)
The term ‘sexual’ occurs throughout the
Sexual Offences Bill [Act]. It is defined in clause 79 [section
78], which was amended in Standing Committee. In what follows
I first make some general comments, then go on to discuss
the original wording of clause 79. Finally I analyse clause
79 [section 78] as it now stands after amendment.
General
A typical use of ‘sexual’ in the Bill is
in clause 10(1) [section 9(1)], which is applied by clause
14 [section13] and runs as follows-
10. [9]. (1)
A person aged 18 or over (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.
What is intended
to be meant by ‘sexual’ here? Or to put it more accurately,
what is its intended legal meaning? As always, one starts with the dictionary.
The Oxford English Dictionary (the OED) gives numerous meanings of the
adjective ‘sexual’. There are six main meanings, some of
which have subdivisions. The list, omitting the numerous
examples given, is as follows.
1. Of or
pertaining to sex or the attribute of being either male
or female; existing or predicated with regard to sex.
(b) spec.
in sexual politics, the principles determining the
relationship of the sexes.
2.
a. Pertaining
to sex as concerned in generation or in the processes connected
with this.
b. sexual
organs, the organs of sexual generation in animals or
plants.
c. Of or
pertaining to the organs of sex.
d. sexual
system (or method): the Linnæan classification
of plants, based on the differences in their sexual organization.
3. Relative
to the physical intercourse between the sexes or the gratification
of sexual appetites.
4.
a. Of animals
and plants: Having sex; sexed; separated into two sexes;
having sexual organs; producing offspring by means of sexual
congress. (Opposed to asexual.)
b. sexual
cell, a reproductive cell which is either male or female;
a sperm-cell or an egg-cell.
c. Of reproduction
in animals or plants: Taking place by means of the congress
of the two sexes. Opposed to asexual or agamic.
5. Characteristic
of or peculiar to the one sex or the other.
6. Having
reference to the sexes.
Suppose A is a surgeon circumcising a boy
of 15, B. When A necessarily touches B’s penis is that touching
‘sexual’ within the meaning of clause 10(1)(b)? If one goes
by OED meaning 2c it certainly is. Even if one goes by OED
meaning 3 it might be argued that it is. But obviously clause
10 [section 9] is not intended to catch a surgeon carrying
out his normal professional duties. Does clause 79 [section
78] help?
The original clause
79
The original clause 79 ran as follows-
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.
I will here
reproduce a passage from my earlier book on the Bill Sexual
Ethics and Criminal Law-
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’. 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.
This definition is so important that I must set it out here.
[Here the definition given above is set out.]
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. They tell us-
Clause
80 [later 79] 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).
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.
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.
As we have seen,
the original clause 79 definition had two limbs (paragraphs
(a) and (b)), both of which must be satisfied if the activity
in question was to be held to be ‘sexual’. Paragraph (a)
said that from the nature of the activity a reasonable person
would consider that it may (at least) be sexual, while paragraph (b) adds that
‘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’. I will examine
these two tests in turn, drawing on the official note on
clause 79 given above.
Paragraph
(a) of the original clause 79
The official note says-
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.
This confirms that the so-called definition
of ‘sexual’ is not a true definition. It breaks the first
logical rule of definitions by using the very term it is
defining, and doing so on the footing that the reader already
knows the intended meaning of that term. As Mellone
wrote-
‘A definition
must not use the term to be defined. An apparent definition
which commits this fault is said to be “circular” or “tautological”
. . .’
A further fault is that the supposed definition
in clause 79 is obscure. Mellone said-
‘The definition
should not be obscure. This arises usually from the use
of expressions which are less familiar than the one to be
defined, thus defining “the obscure by the more obscure”
(obscurum per obscurius).
A clue is given by the reference to sexual
gratification in the passage quoted above. Evidently it
is assumed that the use of ‘sexual’ in the Bill is related
to sexual gratification. Why not say so? After all there
are references to sexual gratification elsewhere in the
Bill. We see that something like OED meaning 3 is intended.
I repeat, why not say so?
The passage
quoted above suggests that the Government does not want
‘obscure sexual fetishes’ to be caught by the Bill. One
wonders why. If a shoe fetishist distresses a woman by an
activity which gives him sexual gratification, possibly
to the point of ejaculation, why should he not be liable
to punishment in the same way as other sexual offenders?
This reference also indicates another failure of logic.
It assumes that a ‘reasonable person’ will be unaware of
the existence of fetishists, and will thus be an ignorant
‘reasonable person’. Why should this unwarranted assumption
be made?
‘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.’
This confirms what is said above that
the Government’s presumed (but shyly unstated) intention
is to confine the meaning of ‘sexual’ to matters related
to sexual gratification. It discloses yet another defect
in this so-called definition. By saying that other activities
may or may not be sexual depending on circumstances and
intentions it shows that an unnaturally narrow meaning is
given to the term ‘activity’. When a surgeon carrying out
circumcision on a boy of 15 touches the lad’s penis the
surgeon’s ‘activity’ might I suppose be called just that,
touching his penis. However a more usual and sensible description
of the surgeon’s ‘activity’ would be that he is a surgeon
carrying out a routine circumcision operation. His activity
is plainly not sexual within the libidinous meaning we now
see is being given to that adjective. Paragraph (a) is not
satisfied, and there is no need to go on to paragraph (b).
Paragraph
(b) of the original clause 79 Paragraph (b) of the original
clause 79 says ‘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’. As I have indicated, this is unnecessary
because in truth an ‘activity’ comprises its nature, its
circumstances and the purpose of any person in relation
to it. What is needed instead of the present clause 79 is
a definition of ‘sexual’ which states expressly, without
the need for surmise, speculation or guesswork, that the
intended meaning is akin to OED meaning 3. I suggest the
following-
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.
Admittedly
this would include activity by a sexual fetishist, which
apparently the Government do not wish to cover. For reasons
given above, it may be advisable for that to be reconsidered.
The amended clause 79
Clause
79 [section 80] as amended by Standing Committee B on 18
September 2003and otherwise reads-
For the purposes
of this Part [except section 71], penetration, touching
or any other activity is sexual if-
a reasonable
person would consider that—
(a) whatever
its circumstances or any person's purpose in relation to
it, it is because of its nature sexual, or
(b) because of
its nature it may be sexual and because of its circumstances
or the purpose of any person in relation to it (or both)
it is sexual.
In
moving the amendment Paul Goggins MP for the Government
said-
1.
Honourable Members may be aware that the way in which the
definition of ‘sexual’ in clause 79 is currently framed
caused concern in [the House of Lords]. It has already been
a matter of some debate in this Committee. One of the noble
Lords suggested that the clause’s wording would be difficult
for juries to understand, which could potentially involve
their reaching the wrong decision on whether a particular
act was sexual. There was also some confusion over the phrase
‘(at least)’ in clause 79(1)(a). We do not want to interfere
with the practical effect of clause 79 because we believe
that it requires the jury to apply the right tests when
deciding whether an activity was sexual. However, we have
no wish to complicate matters for the jury and are happy
to reword clause 79 in the interests of clarity.
2.
Clause 79 provides a definition of ‘sexual’ for the purpose
of the offences in part 1 and is intended broadly to reflect
the definition of ‘indecent’ in the context of indecent
assault in current case law. The jury are required to use
three criteria in their assessment of whether an activity
was sexual: whether an act is sexual by its own nature or
is only ambiguously sexual by nature; the circumstances
in which the act took place; and the purpose of any person
in relation to the act. In short, the test covers all activity
that a reasonable person would consider to be sexual. However,
it rules out any activity that a reasonable person would
never consider sexual by reason of its nature, such as removing
a person’s shoes. That ensures that we do not capture activity
that no reasonable person would consider to be sexual, and
may have been sexual only because the defendant happened
to have a secret fetish not made known to the victim - in
that example, a foot fetish.
3.
At present the test in clause 79 works as follows. Its first
part, in paragraph (a), covers any fundamentally sexual
activity such as sexual intercourse or masturbation. In
such cases, a reasonable person would be in no doubt, simply
because of the nature of the act. Both the tests at paragraph
(a) - that the nature of the act is sexual and that because
of its nature a reasonable person would consider it sexual
- would be met. As well as activity that is obviously sexual
by nature, the clause also covers acts that may or may not
be sexual depending on the circumstances and/or purposes
of any person. For example, digital penetration of a woman’s
vagina by a doctor may be fundamental to diagnosis or treatment,
but could also be wholly irrelevant and only carried out
for the doctor's sexual gratification. The jury must therefore
consider the circumstances and the doctor’s purpose. Similarly,
touching a person’s thigh is by its nature possibly sexual,
but the circumstances in which the touching takes place,
and the reason for it, will determine whether it is in fact
a sexual act.
4. As currently
drafted, the whole of clause 79, including paragraphs (a)
and (b), is relevant to all decisions on whether an act
is sexual. Although the new version of clause 79 continues
to apply the same tests, it clearly separates activity that
is sexual by nature, and would be considered to be so by
any reasonable person regardless of the circumstances in
which it takes place or the purpose of any person in relation
to it, from activity that is sexual only because of those
circumstances or that purpose. That has exactly the same
effect as the current test but will be easier for juries
to understand. That should ensure that only activities that
a reasonable person would consider to be sexual will fall
within the scope of the offence in part 1.
Comments on amended clause
79 [section 78]
The amendment
meets some of the criticisms given above, but most of them
remain. The drafting is a little clearer, but that is all
that can be said in its favour. The definition is still
circular. It is still obscure, and not comprehensible without
the Notes on Clauses and the Minister’s explanation in Standing
Committee. It still brings in an unnecessary ‘reasonable
person’, who is still unreasonably assumed to be ignorant
of sex fetishism. It is still mystifyingly assumed that
a sex fetishist should not be punished like any other type
of sex offender. It still misuses language by irritatingly
assuming that say routine digital penetration of a woman’s
vagina by a doctor is not in any way ‘sexual’ when of course
it obviously is. It still mystifyingly avoids saying what
the dictionary says, namely that in the sense intended penetration,
touching, or any other activity by a person is ‘sexual’
if carried out with a view to the
gratification of their sexual appetites.
Paragraph 2
of the Minister’s explanation is obviously defective regarding
fetishism. In paragraph 3 the sentence ‘Both the tests at
paragraph (a) - that the nature of the act is sexual and
that because of its nature a reasonable person would consider
it sexual - would be met’ is baffling in its obscurity.
Paragraph 4 overlooks what is said above regarding the true
nature of an ‘activity’. And so on.
This perverse
definition still has to be considered by the House of Commons
at the report stage, and then still has to go back to the
House of Lords. So there is still time for common sense
to prevail. There is still time for criminal judges, magistrates,
advocates and juries to be spared much future head-scratching.
Do please let us have the obvious – it is so much easier
in the long run.
