|
Column Number: 127
Standing Committee B
Thursday 11 September 2003
(Afternoon)
[Mr. Win Griffiths in the Chair]
Clause 10
Sexual activity with a child
Amendment moved [this day]: No. 157, in
clause 10, page 4, line 19, leave out 'aged 18 or over'.—[Mrs. Brooke.]
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 158, in
Amendment No. 159, in
Amendment No. 161, in
clause 11, page 4, line 29, leave out 'aged 18 or over'.
Amendment No. 162, in
Amendment No. 163, in
Amendment No. 164, in
Amendment No. 166, in
clause 12, page 4, line 40, leave out 'aged 18 or over'.
Amendment No. 167, in
Amendment No. 169, in
clause 13, page 5, line 16, leave out 'aged 18 or over'.
Amendment No. 170, in
New clause 4—Definition of between 13 and 16—
'For the purposes of this Act ''aged between 13 and 16'' refers to persons aged 13, 14 or 15.'.
New clause 5—Penetration involving adult and child—
'(1) A person (A), aged 18 years or over, commits an offence if—
(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or
(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,
Column Number: 128
(c) and the other person (B) is aged between 13 and 16 and A does not reasonably believe that B is 16 or over.
(2) A person guilty of an offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.
New clause 6—Penetration involving a child and a child or a young person—
'(1) A person (A), aged below 18 years, commits an offence if—
(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or
(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,
(c) and the other person (B) is aged below the age of 16 years and A does not reasonably believe that B is 16 or over.
(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 7 years,
(c) in determination of the sentence, consideration shall be given to the age differential between A and B.
(3) Prior to sentencing, there shall be a comprehensive assessment by a multidisciplinary agency or Youth Offending Team.
(4) Under this clause, a person shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.
2.30 pm
Mrs. Annette L. Brooke (Mid-Dorset and North Poole): This set of amendments could be another solution to our dilemma. Taken together, the amendments could obviate the need for clause 14. Other amendments hang together with those that we are about to discuss, but for the purpose of explaining them, they have been divided into two groups. If I stray on to an amendment from the next group, Mr. Griffiths, I promise that we will not refer to it again.
The Chairman: That would mean that we would be here longer this evening, would it not?
Mrs. Brooke: I shall be as concise as I can, but it is difficult to compartmentalise the amendments, given the way in which they have been drafted.
We are trying to highlight the difference between under-18s and over-18s. Earlier we strayed on to matters that do not apply, so I want to put it firmly on the record that the amendments are not seeking to abolish the age of consent. The theme that runs through them is an attempt to balance the concern about criminalising all consensual sexual behaviour with retaining the age of consent.
New clause 4 deals with penetration involving a child or a young person. New clause 5 covers penetration involving a child and an adult. The purpose of creating such new offences is to remove penetration involving under-16s from the offence of sexual touching, so that sexual touching can be decriminalised for children in certain circumstances, without impacting on the age of consent.
The amendments do not cover oral sex and penetration with other parts of the body or objects. The idea is to create a coherent argument throughout the Bill, which could be supplemented. There would be
Column Number: 129
much scope for further development. New clause 5 defines the ages between 13 and 16, and would make it clear that the age between 13 and 16 is 13, 14 or 15. That detail is included in several other clauses. The new clause would add clarity to the Bill.
The amendments would avoid unnecessary criminalisation of usual behaviour, many examples of which were referred to this morning. The children's associations that have helped to draft the amendments are absolutely committed to protecting younger children from inappropriate sexual activity. They would introduce an age proximity test. It is almost impossible to come up with a hard and fast rule but, as we know, several people who work co-operatively with those within the organisations that have specific knowledge of such matters have made a specific suggestion.
Clauses 10 and 11 would be amended so that over-18s were liable only for offences with 13 to 16-year-olds—a theme that is followed throughout the amendments.
Mr. Dominic Grieve (Beaconsfield): I may have interrupted the hon. Lady too early, but I was interested in the fact that she has chosen to amend clause 11 as well as clause 10, because the two things that are being aimed at in those clauses are different, and there might be an argument, which I shall try to develop, in favour of confining one's attentions to clause 10.
Mrs. Brooke: I thank the hon. Gentleman. This approach is intended to make the overall distinction between under-18s and over-18s throughout this part of the Bill—which involves the question whether clause 14 is necessary. There is a logic to this.
If I remember rightly, the example has been given of two teenagers looking at a pornographic magazine. Most parents would agree that one should not get too worked up about such behaviour. We keep coming up with examples, which I was trying to avoid. We should stick to the principles.
It is unnecessary to read out all the amendments in full. I have outlined the general principles of this approach. If any hon. Members think that there is a different way of tackling the clause 14 problem I should be interested to hear from them.
Mr. Grieve: The hon. Lady's amendments cover an important area, and this is the right time to debate the principles of her approach. Notwithstanding that I have carefully read her amendments, for reasons that I will explain later I have a preference for my amendment No. 132, but that point involves drafting issues, and we should now discuss the generality of the matters that are to be considered with regard to this part of the Bill.
As I said this morning, the problem that we have as we move on to address children between the ages of 13 and 16 is that we are much more aware that, as part of the normal development process, many of them will engage in sexual activity. The statistics show that by the time that they have reached their 16th birthday the
Column Number: 130
majority—certainly of those who have been surveyed—have had full sexual intercourse: the average age at which they begin to do so is 15. Therefore, I have always accepted that different criteria could properly apply to this area than to that which involves children under the age of 13.
We must apply our minds to this key difficulty: if we are to decriminalise any of these activities, every time that we look at each of these clauses, we must think of a worst case. We must be satisfied that in a case that would fall within the exception but which some people might nevertheless consider to be unpleasant we are comfortable with the idea that it should be decriminalised.
We can start from the first premise that anything that is not consensual should be banned. That clearly applies as much to adults as it does to children. Then the question arises: is there any category of activity within those which have been identified and targeted in this Bill which is of such an order that it is pointless criminalising it for those aged between 13 and 16, and if so with whom should it be decriminalised? Should it apply across the board to any adult, or should it be restricted to persons of their own age or roughly their own age?
I start from this basic principle: there is only one category that could be decriminalised, which is straight sexual activity through touching. Having thought about this matter, I find it difficult to see—if anyone disagrees, I would be happy to listen to them—how we could sanction full sexual intercourse because, if we were to do that, it would raise enormous problems in terms of the exceptions where someone wants to enforce the law because it is clear that there has been exploitation and seduction.
On the other hand, I have always felt that clause 10 is fairly draconian; that is the clause that, allied with clause 14—when one takes the two together—criminalises what were described as ''behind-the-bike-shed'' activities. Let us suppose that no criminal offence is committed; someone aged between 13 and 16 engages in behind-the-bike-shed activities with someone of the same age, or, as I suggested in amendment No. 132, within three years of that age. It would be possible for an 18-year-old to have sexual touching with a 15-year-old, and a 13-year-old to have it with a 16-year-old.
I must tell the Minister: as I thought the matter through, it seemed to me that that might be a possible solution, thus potentially earning me the magnum of champagne from the Home Secretary. I would be interested to hear from the Minister what cases within that restricted example would cause the Home Office anxiety because it would wish to prosecute.
Let us take some worst-case examples. We have to face the fact that, notwithstanding the fact that we are rightly removing any homophobic elements from the Bill, many people regard heterosexual and homosexual activity as very different in their nature and quality. We have to face the fact that the amendment would allow two boys or two girls to engage in sexual activity with each other involving sexual touching and mutual masturbation, for example.
Column Number: 131
However, can it really be said that, where such a case involved a 16-year-old and a 13-year-old or an 18-year-old and a 15-year-old, it would be likely to lead to prosecution? I have difficulty in envisaging the circumstances where a prosecutor would feel that that was necessary. I would be interested to hear from the Minister why he thinks it is necessary to have the crime so starkly on the statute book and not to make such an exception.
One has to face the fact that—as it seems to me, and it is probably common ground between everyone present—the consequences of sexual touching, short of penetration, are in physiological terms fairly innocuous. It is difficult to see that any serious consequences may flow from it. Obviously there are emotional consequences, and the emotions of teenagers at the best of times tend to be fairly topsy-turvy, but that must be balanced against the prospect that, in the restricted circumstances that I have described, someone will think that it is in the public interest to prosecute one of the participants. That is the issue that I should like the Minister to address.
Our own amendments have suggested that the same thinking might be applied to other activities in clauses 11, 12, 13 and 14; I should like us to consider that as well. However, curiously enough, I can see a greater objection—this was the point that I made to the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke)—because a 16-year-old inciting a 13-year-old to engage in sexual activity with someone else is quite worrying; that is a very undesirable state of affairs. I do not think it is an undesirable state of affairs if two people, unincited, who happen to be 14 and 15, wish to engage in sexual touching, either behind the bike sheds or anywhere else. I wonder whether the Committee should be focusing on clause 10, because that is the clause to which it is most likely that we can make a decriminalising amendment without causing all sorts of knock-on problems. That is my suggestion for our consideration, but I shall be interested to hear what others have to say.
2.45 pm
|
