|
Mr. Grieve: As we are raising this matter, now might be a good moment to bring up subsection (1)(e)(ii)—I have flagged it up later in an amendment.
The second possibility under clause 18 is that ''B is under 13''. I have no objection to that, but it will effectively duplicate what already exists. Such action, irrespective of whether a person is in a position of trust, is already made a criminal offence. I wonder whether we are doing a good service to the criminal law by having the offence and identifying a person as under 13 when it is difficult to see what that adds to the other offences earlier in the Bill. Perhaps the Under-Secretary can enlighten us as to the Government's reasoning. Later in the Bill, there is another example, which I have sought to highlight by amending my deletion of part 2. It would be useful if the hon. Gentleman could help us.
Vera Baird: May I raise another point? The hon. Member for Beaconsfield is right that only under clause 18 and thereafter is the person in a position of trust vis-à-vis the youngster. However, the sentence seems to be substantially less, which puzzles me.
Paul Goggins: This is helping to keep me on my toes after lunch.
In clause 18 and subsequent clauses, we are re-enacting in its entirety the existing abuse of trust offence, which came into force in January 2001, under the Sexual Offences (Amendment) Act 2000. It is clear that Committee members appreciate that it is important that we now consolidate that in this legislation.
On the belief about age question, I say to my hon. and learned Friend the Member for Redcar that that evidential burden is placed on the defendant here because adults in a position of trust should be expected to know the age of the child: anyone who is in a position of trust with regard to a child should know precisely how old that child is. We regard that as a fundamental responsibility.
I suspect that the hon. Member for Beaconsfield was making a slightly different point. He has promised that we will address it later, and I hope that I will be able to respond to it more fully then.
Question put and agreed to.
Clause 18 ordered to stand part of the Bill.
The Chairman: Before we proceed, it is clear that at some point in its discussion of this collection of clauses, the Committee is likely to want to debate the overall issue of position of trust. I am fairly relaxed about that, but I would prefer to do so only once. I will leave that to the good will and intelligence of the Committee to sort out; its members can decide when they wish to instigate that debate, at which time I am sure that the Minister will be willing to respond to it. I do not want the Committee to become bogged down five times in what is basically the same debate.
Column Number: 211
Clause 19 ordered to stand part of the Bill.
Clause 20
Abuse of position of trust: sexual activity in the presence of a child
3 pm
Mr. Grieve: I beg to move amendment No. 202, in
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 204, in
Amendment No. 205, in
Amendment No. 206, in
Mr. Grieve: These amendments address the same point: although amendments Nos. 204, 205 and 206 relate to later clauses, they are worded in the same way as amendment No. 202, so it is correct that they have all been grouped together.
I will illustrate the point by discussing clause 20. Amendment No. 202 would delete the words,
''for the purpose of obtaining sexual gratification''.
I wish to make it clear that I do not object to this clause in principle, but I invite the Committee to read it with those words deleted:
''A person aged 18 or over (A) commits an offence if—
(a) he intentionally engages in an activity,
(b) the activity is sexual,
(c) . . . he engages in it in the presence of another person (B), knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d) A is in a position of trust in relation to B,
(e) where subsection (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B''.
It goes on, but I need not read any further.
My question is simple: what is the purpose of introducing the following words as a preface to subsection (1)(c):
''for the purpose of gaining sexual gratification''?
The activity already has to be sexual within the terms of clause 79, which we have considered, so what does that phrase add? A sexual activity would have to be very unusual to be performed not for the purpose of sexual gratification, although I am aware that permutations of human behaviour are almost endless.
That phrase requires something further to be proved that is not otherwise necessary. Why do we require that to be proved? There is an argument that the words,
''for the purpose of gaining sexual gratification''
duplicate the meaning of the words,
Column Number: 212
''the activity is sexual''.
That is why I want to delete the first of those phrases. If the Under-Secretary can provide me with a good reason why it should remain, I will withdraw the amendment. However, he may conclude that those words are unnecessary in this context—and that that is the case in the other clauses as well.
Paul Goggins: I shall try to respond briefly to the hon. Gentleman's challenge by giving him an example. A teacher sets out on a day trip with a number of the children at the school where he works, and this is an occasion when the spouses and partners of the staff are invited too—on the face of it, an enjoyable day out. The teacher's partner travels with the teacher and during the course of the day they kiss each other in a very sexual way: they have a passionate kiss in front of the 15-year-old children who are under the care of the teacher. The teacher knows that the children are watching, but he does not engage in the kiss to get sexual gratification from the fact that he knows that they are watching; it is a sexual kiss with his partner that is part of their relationship.
I would argue that that is an inappropriate way to behave; it is probably unprofessional, and no doubt such behaviour would be dealt with by the school authorities. However, that is very different from a situation in which the teacher stays behind after class with three pupils to give them extra tuition and starts to masturbate, knowing that the pupils are watching him. That would be for the purpose of sexual gratification.
We want to be clear. We want to capture an offence in which the fact that children are present and watching the sexual activity gives rise to the offender's sexual gratification. We do not want to cover any other sexual activity that may be going on. I hope that that practical example will demonstrate why in our view it is important that the ''sexual gratification'' wording remains.
Mr. Grieve: I have to say that when I read the clause and the other clauses it had not occurred to me that the use of the words ''sexual gratification'' was designed to narrow the scope of the definition that ''the activity is sexual''. I had not understood that at all. I had interpreted ''sexual gratification'' as anything that gives a person sexual pleasure. Engaging in passionate kissing in the back of a coach can give someone as much sexual pleasure as sexual intercourse, although it may be of a different nature. That was why I felt that the definition was strange.
I do not know whether the words ''sexual gratification'' are defined in the Bill; I confess that I have not seen, and have no recollection of, such a definition. If there is such a definition, that would support what the Under-Secretary has just said. Otherwise, if the words:
''for the purpose of obtaining sexual gratification''
are given their ordinary English meaning, my interpretation—although his and that of his officials may be different—would not lead me to think that there was a distinction made, for instance, between passionate kissing and masturbation. That is something that the Government ought to consider.
Column Number: 213
However, perhaps I am quite wrong and there is a well-established definition of which I am unaware.
Paul Goggins: We keep returning to the definition of the word ''sexual'' or, in this context, ''sexual gratification''. For the purposes of the amendment, the important point is that the ''sexual gratification'', however that is finally defined, is gained from engaging in the act in the presence of the child in relation to whom the adult has a position of trust. That is the key point.
Mr. Grieve: On that basis, a teacher and his partner could take a party of schoolchildren to some woodland and, knowing but not caring that the children were watching, they could decide to engage in full sexual intercourse under a tree. In those circumstances, am I to understand that, because the teacher would be able to say that the purpose of the act was not to obtain sexual gratification from the children watching him do it, he would be exculpated from the offence? I cannot believe that that is what the Under-Secretary intends. If that is not what he intends, I am still unpersuaded that the words:
''for the purpose of obtaining sexual gratification''
are necessary, because they only need to be there to qualify the ''activity'' being ''sexual''. I appreciate that the distinction is the degree of culpability, but if someone in the position of trust engages in inappropriate activity, why has he not committed an offence if the activity, although inappropriate, was not engaged in for the purpose of obtaining sexual gratification?
The difficulties faced by a jury in resolving such issues seem considerable. I question whether the provision is needed, but I leave the matter to the Minister. I shall not press the amendment to a Division, but I hope that the hon. Gentleman will think about it further. At present, I am not completely persuaded that that part of the clause is necessary, although I understand the motive behind it.
| 
