Sexual Offences Bill [Lords]

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Sandra Gidley: I thank the Solicitor-General for her explanation, but I sometimes worry that in trying to tie up all the ends in a way that affects the community at large the matter may not have been thought through. Notwithstanding what she said about people with learning disabilities previously being able to be treated in hospital rather than in jail, there are some wider implications. I am reminded that many people have lobbied long and hard for some years to put into the public's perception the idea that people with learning disabilities do not necessarily have mental health problems. The two often go together, but not always and some people have learning disabilities with no mental health problem. There is a feeling that to go down the track that the Solicitor-General is advocating is to return to the days of describing people as being mentally defective. That is how strongly people feel about the matter.

I take the Solicitor-General's point that the debate will take place next year, but we have the precedent of the Youth Justice and Criminal Evidence Act 1999. I should have thought it preferable at the moment to retain the existing term and to leave the arguments for another time. The amendments are attracting quite a lot of heat and it is important to ensure that other measures in the Bill are right.

There is a strong feeling among organisations such as Turning Point and Mencap about the concept of learning disability and it would be helpful to continue using that in legislation. To move in the direction that the Government are advocating is to take public perception back light years. I understand the technical argument that the Solicitor-General is making, but

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there is a wider, societal argument that, sadly, the Government seem to be ignoring.

Amendment agreed to.

Amendment made: No. 53, in

clause 32, page 16, line 23, leave out 'or learning disability'.—[The Solicitor-General.]

The Solicitor-General: I beg to move amendment No. 112, in

clause 32, page 16, line 28, leave out 'possible' and insert 'reasonably foreseeable'.

The Chairman: With this we may discuss Government amendment No. 113.

The Solicitor-General: Clauses 32 to 35 are designed to protect the most vulnerable among those with a mental disorder: those who lack the capacity to consent to sexual activity.

Although many people with a mental disorder will be able to consent to such activity, there will be some, such as those with a profound learning disability, who will be unable to give their informed consent. Such vulnerable people have been specifically targeted for sexual abuse by predatory individuals, and the law has hitherto failed to provide adequate redress. The clauses, together with clauses 36 to 46, are intended to remedy the situation by providing a strong legal framework to provide better protection.

Government amendments Nos. 112 and 113 seek to refine the definition of a lack of capacity to choose in the clauses by replacing the phrase,

''sufficient understanding of the . . . possible consequences of the sexual activity''

with

''sufficient understanding of the . . . reasonably foreseeable consequences of the sexual activity''.

That was proposed in another place. As a result of that debate, we undertook to consider the definition further. The amendments are supported by many of the organisations working to assist people with learning disabilities, and we have drawn on their expertise and on that of learning-disabled individuals who have raised the matter with us, in concluding that the amendments are the right way forward. We have accepted the concerns of those organisations that

''a sufficient understanding of the . . . possible consequences''

was too broadly defined and might require a greater understanding of the consequences of sexual activity—all the possible consequences—than might be found in many of the population at large.

We suggest that it is reasonable for the definition to cover understanding of the ''reasonably foreseeable'' consequences, such as that sexual intercourse could lead to pregnancy or carry certain health risks, but not of the emotional or all the other possible consequences of sexual activity, which, after all, many young adults without a mental disorder or learning disability might not understand. It is essential that the balance between protecting the vulnerable against abuse and respecting their human rights should be achieved. We believe that that more limited test brings us closer to that goal.

Amendment agreed to.

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Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Malins: I wonder whether the Solicitor-General might consider—not now but before Report—whether there are any circumstances under the clause, to which subsection (4) would not apply, in which there could be a not-so-serious offence for which magistrates' powers of sentencing would be sufficient. There is no provision under subsection (3) for magistrates to have sentencing powers, but there might be the occasional case in which the magistrates' powers would be sufficient, so the matter need not be made indictable. I hope that the Solicitor-General will allow that point to be absorbed and respond to it in due course, perhaps by letter.

The Solicitor-General: I think that I can respond to the point by reference to amendments Nos. 114 and 115, which make the mode of trial either way. Perhaps the hon. Gentleman can support the arguments in those amendments.

Mr. Malins indicated assent.

Question put and agreed to.

Clause 32, as amended, ordered to stand part of the Bill.

Clause 33

Causing or inciting a person with a mental disorder or learning disability to engage in sexual activity

Amendments made: No. 54, in

clause 33, page 17, line 7, leave out 'or learning disability'.

No. 55, in

clause 33, page 17, line 10, leave out 'or learning disability'.

No. 113, in

clause 33, page 17, line 15, leave out 'possible' and insert 'reasonably foreseeable'.—[The Solicitor-General.]

Clause 33, as amended, ordered to stand part of the Bill.

Clause 34

Engaging in sexual activity in the presence of a person with a mental disorder or learning disability

Amendments made: No. 56, in

clause 34, page 17, line 33, leave out from 'it' to 'knowing' in line 34 and insert—

'(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) '.

No. 57, in

clause 34, page 17, line 36, leave out 'or learning disability'.

No. 58, in

clause 34, page 17, line 39, leave out 'or learning disability'.—[The Solicitor-General.]

The Solicitor-General: I beg to move amendment No. 114, in

clause 34, page 18, line 1, after 'liable', insert '—

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(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) '.

The Chairman: With this it will be convenient to take Government amendment No. 115.

The Solicitor-General: I might have misheard the hon. Member for Woking earlier. Clause 32 involves penetration, so it would not necessarily be appropriate for the offence to be triable either way.

We are now considering amendments Nos. 114 and 115. They would address a disparity between clause 34, which covers engaging in sexual activity in the presence of a person with a mental disorder, and clause 35, which covers causing a person with a mental disorder to watch a sexual act and the equivalent child sex offences under clauses 12 and 13. The offences under clauses 12 and 13 are triable either way, whereas those under clauses 34 and 35 are triable on indictment only. We believe that the same flexibility about mode of trial should be applied to each of the clauses.

The offences potentially catch a wide range of behaviour. For example, clause 34 could catch someone engaging in sado-masochistic sex in the presence of a mentally disordered adult who lacks the capacity to consent. Clause 35 could cover someone forcing such a person to look at a video of a person engaged in a sexual activity with an animal. Such cases are likely to need to be dealt with at the Crown court. However, the sexual activity in the presence of the person or depicted in an image may be a couple sexually caressing each other. Although the deviancy and potential harm is in the fact that this activity is shown to the person for the defendant's own sexual gratification, behaviour at that end of the spectrum might be capable of being dealt with at the magistrates court. We believe therefore that we have got it right in the child sex offences clauses and that the same flexibility about the mode of trial should be extended to clauses 34 and 35.

Amendment agreed to.

Clause 34, as amended, ordered to stand part of the Bill.

Clause 35

Causing a person with a mental disorder or learning disability to watch a sexual act

Amendments made: No. 59, in

clause 35, page 18, line 8, leave out 'a photograph or pseudo-photograph' and insert 'an image'.

No. 60, in

clause 35, page 18, line 11, leave out 'or learning disability'.

No. 61, in

clause 35, page 18, line 14, leave out 'or learning disability'.

No. 115, in

clause 35, page 18, line 21, after 'liable', insert '—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) '—[The Solicitor-General.]

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Clause 35, as amended, ordered to stand part of the Bill.

Clause 36

Inducement, threat or deception to procure sexual activity with a person with a mental disorder or learning disability

Amendments made: No. 62, in

clause 36, page 18, line 32, leave out 'or learning disability'.

No. 63, in

clause 36, page 18, line 34, leave out 'or learning disability'.—[The Solicitor-General.]

Clause 36, as amended, ordered to stand part of the Bill.

 

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Prepared 16 September 2003