Comments on Standing Committee
B debates
Chapter 9 above sets out the full report
of the proceedings in Standing Committee B relating to clause
14 [section 13] of the Sexual Offences Bill. In this chapter
I examine what was said by MPs, and add some comments. My
object is to add to the argument on whether my proposed
amendment to clause 14, set out in chapter 1 above, should
be adopted. What is set out below is given verbatim, with
indications of where passages have been omitted.
Criticisms of Clause 14
There were many
criticisms of Clause 14 by MPs. These indicate that some
amendment of Clause 14 is widely considered to be necessary.
Here is a selection of the criticisms.
Mr. Dawson:
I beg to move amendment No. 11, in clause 14, page 5, line
33, at end insert ‘, unless such actions could be considered
by a reasonable person to constitute ordinary, consensual
adolescent behaviour.’.
.
. . . .
The pressure
on children to engage in mock-adult behaviour and behaviour
that is way beyond their years is immense and growing, and
the current age of consent is under threat. How can it not
be, when it is reliably reported in The Lancet and other
places that 30 per cent. of men and 26 per cent. of women
say that their first experience of intercourse occurred
before the age of 16? Every Member of Parliament is concerned
about the teenage pregnancy rate in this country. Clause
14 effectively outlaws kissing for under-16s on pain of
five years imprisonment. That is how young people see it,
but I do not know about other hon. Members. I attended a
spirited debate at the annual assembly of the United Kingdom
youth parliament in July when young people were well informed
and aghast at the implications of the clause. I am extremely
concerned that it is deeply flawed and that it will bring
the age of consent of 16 into total disrepute and undermine
it. The young people to whom I talked at the youth parliament
and those from my constituency who visited Parliament earlier
this week could not believe that such a provision was even
being considered by anyone in this House.
I am concerned
that the clause will prevent young people who are involved
in consensual relationships from seeking advice on contraception,
how to handle those relationships and the emotional implications
of deep relationships before the age of 16. I am also concerned
that it will leave some young people more vulnerable to
abuse because of the need for secrecy. Who could fail to
recognise the potential for emotional blackmail of a vulnerable
child who is emotionally attached to a domineering partner
of a similar age and who cannot tell what is going on because
she would not want him to go to prison for five years? We
want openness, education, sound advice, counselling and
support, and that should be based on effective law that
is rooted in the reality of children’s experience. Touching
may be coercive, but it may be mutually agreed, experimental
and normal. Young people develop in maturity and understanding
at different rates and the response of parents, family and
professionals to the challenges of young people’s sexuality
should be proportionate, supportive, sympathetic and helpful.
.
. . . .
We do not prosecute
under-16s who become pregnant. If we are effectively to help young people
who are involved in consensual sexual relationships, we
must treat them decently. The response to any form of sexual
experience for under-16s should not be condemnation, which
is implied by clause 14. We should understand the position
of under-16s.
.
. . . .
They should see
that the Bill is a great attempt to protect them from sexual
exploitation, and the implications of clause 14 are preposterous
and potentially extremely damaging.
Mr. Grieve:
I fully understand the hon. Gentleman’s intention. Indeed,
the intention is similar, albeit differently worded, to
that of the amendment moved by the hon. Member for Romsey
(Sandra Gidley) this morning and amendment No. 132, which
was my attempt.
.
. . . .
The problem with
the amendment tabled by [Mr. Dawson] is that it raises the
obvious possibility that the definitions are so loose that
somebody who does some heavy petting in Lancaster might
appear in front of a Lancaster jury and see it decide that
the activity is in order, while a defendant in Norwich might
appear in front of another jury for doing the same thing
and, because of the flexibility, see that jury decide that
the activity is out of order. I hope that the hon. Gentleman
recognises that the degree of uncertainty that that would
produce in relation to people’s behaviour and conduct is
such that the administration of justice would become very
difficult. People would legitimately complain that they
had a reasonable expectation that what they were doing was
in order. They would ask why, suddenly, when they had read
in the paper that the activity was held to be in order somewhere
else, it was held to be out of order now that they were
doing it.
.
. . . .
Mr. Bryant:
I think that I agree with the hon. Gentleman. Does he not
think that there might be a thoroughly reasonable or fundamentalist
Christian who believed that it was extremely extraordinary
for two young people of 15 to be kissing, or even holding
hands, whereas two liberal-minded people living in Hampstead
or Highgate might hold completely different views on that?
.
. . . .
Julie Morgan
(Cardiff, North):
.
. . . .
The message we
give to young people is important and we must remember the
high teenage pregnancy rate in this country. We must not
give a punitive message to those young people who have become
pregnant at an early age, and who we know engage in sex
at an early age. The law as it stands clearly fails, because
so many young people under 16 are pregnant. It is important
that we give a message that we want to concentrate on young
abusers in the Bill, and there is a significant number of
them, as has already been said. They cause terrible anxiety
and problems. In order to do that, we need to get rid of
the concept that we are widening the net and drawing in
behaviour that we know is ordinary and part of growing up.
Mr. Bryant:
I sympathise with the point that my hon. Friend is making.
My difficulty is with the word ‘ordinary’ that she has just
used. Another word for ‘ordinary’ is ‘normal’. It is very
difficult to use those words without attracting value judgments
. . .
Julie Morgan:
.
. . . .
We need to reach
out to young people. The words in the Bill must be understood
by young people. I have had the sort of experience that
my hon. Friend said that he had when he spoke to young people
in the youth parliament. Their concern about this sort of
development in the Bill is a worry.
.
. . . .
Mrs. Brooke:
.
. . . .
I think that
clause 14 is very damaging as far as the way in which young
people interact with society is concerned. We have to accept
the culture of young people. I do not mean agony aunt columns
in magazines, but the sort of magazines that they read,
what they read about, the films that they are seeing and
the books that they are reading. The clause does not match
that at all and we owe it to young people not to give signals
that everything that they do is wrong. I find it very worrying
that we have had some exceedingly useful discussion and
at times edged closer to a solution, but then the lawyers
stand up. With all the struggles that we are having, I keep
coming back to the point that we are reassured because not
many cases will come before the courts if matters are left
as they are, but every time we try to change them, a huge
problem emerges about cases coming before the courts and
how the law will be interpreted. I would really like to
find a solution to that problem. I wish that I had the skills,
which I obviously do not, to find it. I just hope that we
can keep working on it. We all had a mailing from a Mr.
Bennion, which we did not have time to discuss and examine,
so I do not know if there is anything in that that the civil
servants will be able to consider. I support wholeheartedly
every sentiment in the amendment, and I wish that we could
find the way through.
Mr. Gerrard:
My hon. Friend [Mr Dawson] and other hon. Members who have
spoken are absolutely right to point to the clause as currently
drafted as a real problem.
.
. . . .
Mr. Randall:
.
. . . .
I have a problem
with laws that may be broken—we must endeavour not to create
laws that need be obeyed only in certain ways. That makes
an ass of the law.
.
. . . .
We would be sending
out a strange message if we said that although we do not
expect cases to be taken to court, much normal behaviour
is technically a criminal offence. I have a great problem
with that.
.
. . . .
Paul Goggins:
.
. . . .
The object of
clause 14 is not to criminalise what some would describe
as harmless activity, but to criminalise activity that is
seriously harmful to children when carried out by other
children.
.
. . . .
Mr. Grieve:
If we can improve the law by sending a clear message about
what is acceptable and what is not, it might help young
people to determine what is acceptable and unacceptable
behaviour. Allowing a 13-year-old to engage in heavy petting
with someone up to three years their senior provides the
benchmark for what is acceptable, whereas penetrative sexual
activity is not. That might encourage the sort of improvements
in sexual behaviour that the Minister and the Government
seek.
Paul Goggins:
.
. . . .
. . . clause
14 is to cover the reality that far more children than we
would wish are engaged in this activity.
Age of consent
A Government objection levelled at my amendment
is that it would undermine the age of consent. I turn now
to passages in the Standing Committee dealing with this
aspect.
Vera Baird:
.
. . . .
The age of consent
for sex—or penetration—should either be 16 or not. We cannot
say that we agree with that age of consent but then not
apply it in some circumstances. That is not practical. Either
the state thinks that a girl under 16 cannot consent to
sex, or it does not. It does not matter who she has sex
with; the state must take a position and keep to it.
.
. . . .
As the hon. Member
for Beaconsfield said this morning in another context, we
should draw a line and say, ‘‘You should not have sex until
you’re 16’’, but none the less provide all the sex education
that is given currently. I hope that that unhappy compromise
might be a reasonable answer.
.
. . . .
As we all agree,
this is a difficult area—we are all still touting like mad
for the Home Secretary’s champagne. However, the Government
should think again. In the spirit of what my hon. Friend
[Mr Dawson] and other hon. Members have said, all of which
has confirmed my view, I would say that it might be possible
to reach a formulation, such as that of amendment No. 132,
that would allow the sort of petting that everyone knows
goes on between teenagers preparatory to sex. There could
be a formulation that did not criminalise that, as it would
make consent a practical proposition. Such an amendment
would say that it was against the law to have sex under
age, and that would be consistent with our respect for the
age of consent.
.
. . . .
Mr. Dawson:
.
. . . .
There is a huge
problem involving the law about the age of consent. Across
the Room, people have expressed their support. We are talking
about something that is breached so often and shrouded in
so much confusion. My amendment was an attempt to include
in the Bill some of the reasoning that must be employed
not only by juries, the Crown Prosecution Service and police,
but by parents and everyone in contact with teenagers. I
hope that we can continue discussions, perhaps outside this
forum, to achieve something a great deal more satisfactory
for Report. If we go ahead with the provision in its current
form, it will greatly undermine the age of consent and bring
the law and Members of this House into disrepute with young
people, who are incredulous that, in our worthy attempts
to protect them from the serious offences that are often
committed by other young people, we are placing just about
every single young person at risk from this legislation.
Consent
by underage children
I pass now to the question whether children
who are under 16 can give real consent.
Mr. Gerrard:
.
. . . .
I took the opportunity
of the lunch break to look at the current CPS guidelines,
which were mentioned this morning, to see what happens under
the law now and how that would relate to the clause. What
they say highlights the problem. We are in a situation,
which we will still be in when the Bill is enacted, in which,
as a matter of law, someone under the age of 16 cannot consent
to an act that is otherwise an assault. However, they can
consent as a matter of fact. That is the problem: matching
together a matter of law in terms of consent and the matter
of fact that someone has consented. What is clearly in the
guidelines now is that, if the victim consented, that would
be relevant when considering the public interest in whether
to prosecute. Factors such as the age of the defendant in
relation to the victim, emotional maturity, any element
of seduction, the relationship between the parties, a duty
of care and breach of trust are, rightly, taken into consideration
now. They are exactly the sort of factors that one would
want to be taken into consideration. Ideally, we would somehow
be able to bring the guidelines into the Bill, but I still
have great difficulty in seeing how we could do that and
produce a legally workable clause. I sympathise entirely
with what [Mr Dawson] says in the amendment. That is what
we are all basically thinking. We need a common-sense approach,
so that people are not prosecuted for what we would regard
as consensual adolescent behaviour and not a problem. How
one defines that may be the difficulty.
Paul Goggins:
.
. . . .
We discussed
‘‘consensual’’ earlier, and said that what may appear to
be consensual between a mature 15-year-old and an immature
13-year-old may not be so.
.
. . . .
Vera Baird:
My hon. Friend said that there were some predatory young
people. That is right. If one introduces the defence of
consent into a clause-14 type offence, someone could still
be prosecuted if they had preyed on someone and there was
not consent. It would not prevent that from happening. It
would simply shift it into the area where consent was an
issue. That is a step that my hon. Friend should consider.
Paul Goggins:
I shall consider all comments and recommendations. We are
trying in these clauses to add more protection where consent
is less clear than it is when one of the non-consensual
offences applies. The balance is clearly a difficult one,
but the objective in this part of the Bill is to add protection
for children even when the activity engaged in is with other
children.
Views of Academics
Mr Malins mentioned the views of certain
academics, which require consideration.
Mr.
Malins: This is a difficult clause. It is not a happy
clause and I have a great deal of sympathy with the approach
taken by [Mr Dawson]. Let us consider what the clause says.
It will make it an offence punishable by up to five years
imprisonment for a young person of 13, 14 or 15 to engage
in any sexual activity with a person of similar age, even
if it is consensual and/or relatively minor. It bears repeating
that it would be an offence for a boy and girl aged 15 not
only to have sexual intercourse, but to indulge in heavy
petting, to fondle one another sexually or even to kiss
mouth to mouth. I mentioned earlier that I had been in contact
with Professor John Spencer of Selwyn College, Cambridge.
I shall share some of his thoughts on the clause and the
amendment, because he is as distinguished an academic as
one could find and what he says may be of some help to the
Government. I hope that they will take on board what he
says. Professor Spencer says of the clause:
‘I share the view of many
speakers in Parliamentary debates who have said that this
is ridiculous. The reason was well put in respect of the
existing law by Professor Brian Hogan, who took the case
of a 14 or 15 year-old schoolboy being familiar with a schoolgirl
of similar age.
He said in ‘On
modernising the law of sexual offences’, which appeared
in ‘Reshaping the Criminal Law’ of 1978:
‘Such conduct is a crime
for him, and a crime for her if she responds in kind. No
doubt prosecutions in such cases as these are almost unheard
of, but that such conduct is even technically an offence
I find wholly repugnant. As all . . . research shows this
makes criminals of a sizeable proportion of the population.
And it is wholly wrong that conduct which has been a part
(and surely not a detrimental part) of the sexual growth
of nearly all of us should be stigmatised as criminal. The
reformer who explained to fourth, fifth and sixth formers
at any school that much of their consensual sexual conduct
is criminal and ought to remain so in a modern criminal
code would be deservedly laughed out of the class.’
How can I distance
myself from those observations? Professor Spencer states:
‘It is no answer . . .
for people to say “It’s not a change—the present law makes
it illegal too”. The Bill is supposed to create a modernised,
rationalised law of sexual offences, fit for the 21st Century.
Nor is it any answer to say’’—
as some do—
‘It’s not possible to
exclude harmless consensual behaviour between teenagers
whilst enabling the law to protect children against sexual
exploitation.’ French law managed to find a sensible solution
when its new Criminal Code was enacted in 1994. This contains
in Article 227–25 a general offence of sexual behaviour
with persons who are under 15: but (unlike the earlier law)
it can only be committed by adults (i.e. people who have
reached the age of 18).’
The professor
thinks that
‘the solution for us would
be simply to delete Clause 14, without replacement. The
sort of predatory minor whom we might want to prosecute,
or at least threaten with prosecution, would still be guilty
of a whole range of serious offences if he turned his attention
to a child under the age of 13, or did any sexual act to
or with a child over 13 to which the other participant did
not freely consent (in the sense in which clause 75 defines
it)’.
He adds that
he cannot
‘think of much behaviour
by minors that we would want to prosecute which would not
be caught by one of the other offences in the Bill, or some
other part of the criminal law. Perhaps there might be a
problem with the over-sexed youth who continually pesters
other children for sex: like the 15-year-old defendant in
R v B (A Minor) [2000] AC 428, who repeatedly pestered
a 13-year-old girl on a bus by asking her for oral sex.’
The professor
believes that such a scenario could be covered by a prosecution
of
‘an offence under the
Public Order Act—and presumably would be the case if the
girl he had pestered had been over 16 (or indeed if this
sort of thing were done by one adult to another).’
He concludes:
‘If this were thought
to be insufficient, then I suppose we could leave Clause
14 in, but limit its effect to some of the offences only
(e.g. the incitement offence in Clause 11). I think a respectable
case could be made for saying that the criminal law needs
to extend to catch a minor who pesters unwilling children
for sex, whilst not making consensual sex acts criminal
when they are done by consenting minors over the age of
13.’
The Government
and the Minister should listen carefully to Professor Spencer’s
views. I do not dissent from anything the professor says.
He is a top academic. I do not know what discussions officials
have with top academics. Have they run such matters right
past the top professors at all the universities in the country?
If not, why not? Professor Spencer has been most helpful
to me. The last thing he said to me was, ‘Have you read
The Secret Diary of Adrian Mole Aged 133/4?,
to which I replied, ‘I think so.’ He said, ‘Listen chum,
look at the page that describes his adventures with Pandora,
when he says, “Pandora let me touch her bust today, but
I couldn’t feel much through her anorak”’.
.
. . . .
Mr. Gerrard:
I wonder whether the Minister would address the point raised
by the hon. Member for Woking, who cited the opinion of
an academic that if clause 14 were not in the Bill at all,
people who would have been caught by it would be caught
by offences in other clauses. I would like clarification
of that point. If the clause were not in the Bill, what
sort of activities would no longer be caught by other clauses?
.
. . . .
Paul Goggins:
I simply make the point that we must recognise in the Bill
that such assaults are sometimes carried out by children.
Either we can amend clauses 10 to 13 to reflect that—but
they carry heavier penalties—or we must have clause 14.
Having considered the matter and thought long about it,
our judgment is that we should have clause 14, which recognises
and deals with the fact that the perpetrator is sometimes
a child, but relates that to more appropriate offences.
