Letter from Minister

 

Letter dated 30 October 2003 from Paul Goggins MP, Parliamentary Under Secretary Of State Home Office to Francis Bennion.

 

Dear Mr Bennion

 

Thank you for your letter of 12 September 2003 and for taking the time to share with me your suggestions about the child sex offences

 

You have proposed that clause 13 should be struck out of the Bill and that clause 9 should be amended so that it applies regardless of the age of the defendant and so that no offence is committed if the alleged offender is aged under 16; the complainant is aged 13 or over but under 16; the activity is consensual; and the sexual act does not cause injury or disease to the complainant, or [where the complainant is female] lead to pregnancy. The other child sex offences should be amended in line.

 

One immediate problem is that you have not provided a definition of “injury”. It is possible that any injury could be unintentional, for example as the result of inexperience and first time intercourse. Causing the transfer of disease or pregnancy could also be unintentional and the result of ignorance or inexperience. I cannot see the logic for using these factors as a justification for prosecution.

 

You have mentioned that the law provides for a defendant to avoid a rape charge if it is proved that the complainant consents and have suggested that if a defendant aged 13 or over can consent to rape, then surely he can consent to any lesser form of sex. This thinking would make the child sex offences unnecessary. You have suggested that, at the very least, the law should allow for consent where there is similarity in age.

 

I must take issue with you on these points. If someone consents, he is not consenting to the act of rape, which is an offence that is by its very nature non-consensual, but is consenting to sex. Thus the offence of rape is not made out at all. In relation to underage sex, the fact that any sexual activity is unlawful provides for someone to be at least found guilty of an unlawful act even if there is not sufficient evidence to support a guilty verdict for a non-consensual offence. In relation to victims under 16, providing both non-consensual and unlawful offences allows for the sentence to reflect the different nature of the defence.

 

I regret that, in my view, introducing the concept of consent into clause 13 would fundamentally undermine the age of consent, which currently applies to all sexual activity. We would lose the clarity in the law that stems from having an age of consent below which all sexual activity is unlawful

 

I feel that it is unrealistic to place the o4is on one child to decide whether or not another child has the capacity to consent. It is also not safe to assume that consent is a simple issue where children are involved. The law must allow for the fact that children can be bullied or pressurised into agreeing to engage in sexual activity.

 

You have argued that it is unrealistic to suggest that a child can commit the same offence as an adult because an offence contains both a physical and a mental component and a child can never have the same mental state as an adult. We agree that a child’s mental state will be different from that of an adult. This is why, in relation to the child sex offences we have a lower penalty for a child offender who commits the same physical act as an adult The child’s mental state will be one of the factors to he taken into account when deciding whether to prosecute and their immaturity will be relevant thy sentencing purposes.

 

Our priority is to ensure that the law provides protection for children and enables the
prosecution of anyone, whether an adult or another child, who coerces or exploits them into sexual activity. The child sex offences in the Bill give children additional protection in that they do not require the prosecution to prove lack of consent for the offence to be made out There may be circumstances where a child is pressured or bullied into agreeing to sexual activity but where a non-consensual offence would be difficult to prove. This might be because there is insufficient evidence that coercion took place - for example because the child will not testify to that effect because they continue to believe that the defendant genuinely cares for them. Alternatively, the defendant may not have reasonably believed that the child consented - for example where the child “agreed” to the act only because of the pressure being placed on them by the defendant.

 

Of course, adults do not have a monopoly on child abuse and children can be bullied or coerced into sexual activity by one of peers. One can envisage the scenario where a 16-year-old boy bullies a 14-year-old girl into engaging in sexual activity and it is essential that the law provides the same levels of protection for children regardless of the age of their sexual partner.

 

We also believe that the age of consent is welcomed by many young people, because it can help them to resist unwelcome sexual advances. There are enough pressures on young people today, in the media and elsewhere to be part of a perceived teenage sexual culture; we fear that decriminalising any type of sexual activity will place them under even more pressure to take part in sexual activity before they are ready to do so. Introducing the concept of consensual sexual activity below the age of consent could confuse young people and weaken the protection provided for them under the law.

 

The discretion exercised by the CPS in deciding whether or not prosecution is in the public interest where person under 16 engages in consensual sexual activity with another young person or child, has been discussed at some length, as has the question of the appropriate treatment for children who are convicted of sexual offences

 

This is a difficult and sensitive area in which the views of well-informed people of good intention ‘are genuinely divided. Despite considerate efforts by a number of people - including yourself - there is no consensus about the way in which the Bill should be changed and I still believe that the approach we have adopted is the right one.

 

I remain confident that the requirement that any prosecution must be in the public interest will mean that where there is no evidence of coercion or exploitation, cases will not be brought before the courts. This is the position now and we can see no reason why it should change.

 

We believe that we have struck the right balance between acknowledging that sexual activity between young people does take place while at the same time protecting all children from sexual abuse.

 

You have also raised concerns about the definition of “sexual” in the Bill and have proposed amending it to read -

 

“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”.

 

Your definition would exclude from prosecution any overtly sexual act, for example intercourse or masturbation, in cases where the prosecution was unable to prove that the act was carried out by the defendant for the purposes of his own sexual gratification. Our policy is to have a definition that expressly includes all overtly sexual acts, regardless of the intentions of anyone involved in them We do not want a defendant to fall outside the scope of the definition by claiming that he carried out such an act for the sexual gratification of the victim and not himself, or as some sort of rite of passage within a religious group, or because he thought that it would ease the victim’s tensions or anxiety, or because he was teaching the victim for their own benefit. Where overtly sexual activity is concerned, for example intercourse or oral sex, we do not consider it necessary or helpful for the prosecution to have to prove that the defendant performed the act for his own sexual gratification.

 

Where someone is getting sexual gratification from an obscure fetish and no harm or distress is caused to anyone involved in the activity, and any sexual gratification remains secret to the defendant we remain of the view that this will not come to the attention of anyone else and thus does not need to be captured by the criminal law on sexual offences. However, I am satisfied that your example of the “shoe fetishist” would be captured under our definition. Our test is based on the decision in the case of Court, which, as far as we know has been operating well for more than 20 years. We see no justification for changing it.

 

Thank you again for the considerable amount of lime you have clearly spent in drafting your suggestions and for the valuable contribution you have made to our own consideration of these important issues. I am copying this reply to Humfrey Malins, who has expressed an interest in your suggestions.
[Signed]

 

Paul Goggins

cc Humfrey Malins MP