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House of Lords

Thursday, 13th February 2003.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Lichfield.

Sexual Offences Bill [HL]

The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I beg to move that this Bill be now read a second time.

Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. A responsibility rests on the Government adequately to protect everyone in society from such crimes, especially those who are most vulnerable to abuse: children and persons with a mental disorder or learning disability. We believe that the new framework of sexual offences, notification requirements and orders provided for in this Bill will give just such protection.

A responsibility also rests on the Government to ensure that the criminal justice system delivers justice. At the moment, only a fraction of sex offences recorded by the police end with a guilty conviction. Too often when the offence has been committed, the victim does not get justice. We are addressing this by improving the investigation of rape cases, enhancing the quality of case preparation and presentation at court and improving the treatment of victims and witnesses in cases involving allegations of rape and other sexual assault.

However the criminal law also plays a vital part. Our proposals in this Bill will provide a clearer legal framework for juries as they decide on the facts in each case.

The law on sexual offences, as it stands, is archaic, incoherent and discriminatory. Much of it is contained in an Act dating from 1956, and most of that was simply a consolidation of 19th century law. It reflects neither the changes in society and social attitudes which have occurred since then, nor our increased knowledge of the profound and long-lasting effects of sexual abuse. The Bill provides for new offences that set out clearly what is unacceptable sexual behaviour, together with appropriate penalties. Our proposals are the product of two major reviews, which both received extensive consultation.

Part 1 sets out a new framework of sexual offences. Part 2 deals with notification requirements and orders designed to prevent sex offending and other sexually harmful behaviour. Part 3 contains general provisions.

Clauses 1, 3, 5 and 7 provide for the non-consensual sex offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. They should be read together with Clauses 77 to 81.

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Issues surrounding consent are central to establishing whether a sexual offence has taken place. It is therefore vital that the law is crystal clear about what consent means and what steps need to be taken to establish that it has been given in any particular case.

Under existing law, where a defendant is found to have an honest belief in the consent of the complainant, then even if such a belief is unreasonable, he must be found not guilty. We believe that that is wrong and must be corrected.

We will introduce into the law on consent a test of reasonableness. Where the prosecution can establish that sexual activity has taken place, that the other person did not consent to it and that a reasonable person would, in all the circumstances, have doubted whether the complainant consented, if the defendant did not act in a way that a reasonable person would consider sufficient to resolve that doubt, the offence will be made out. All this will be for the prosecution to prove. The defendant remains innocent until proved guilty beyond reasonable doubt.

We also believe that the law should set out a list of circumstances in which various presumptions will be made as to the complainant's consent and the defendant's belief in consent. This is done in Clause 78. These are circumstances in which it is most unlikely that consent was freely given, such as where the complainant was unconscious or asleep. Should the prosecution prove that sexual activity took place in one of these circumstances and that the defendant knew that the circumstances existed, there will be a presumption that the complainant did not consent, and that the defendant did not believe that the other party consented to the sexual activity. Both of these presumptions may be rebutted by the defendant.

We have had several useful discussions about this proposal with the noble Lord, Lord Thomas of Gresford, and others. They have raised particular points about the workability of the clause. I do not in any way suggest that that is the only point that the noble Lord, Lord Thomas of Gresford, has raised, but we have had particularly useful discussions with him on that. I assure your Lordships that we will very carefully consider all the points that have been made about the workability of that clause. That does not mean that we will not think about other issues as well, but it is worth referring particularly to that point.

We propose a package of measures to give children the greatest possible protection under the law from sexual abuse. We believe there is an age below which there should be no question as to whether a child consented to sexual activity. We want to stop the traumatic practice of young children being cross-examined about whether they consented to sexual activity before a conviction can be secured. Clauses 2, 4, 6 and 8 provide for a number of offences specifically designed to protect children under 13. In these offences, proving that the act took place will be enough to convict the defendant. Clause 76 provides that if the elements of one of these offences are proved, the defendant can be convicted only of that offence. No alternative verdict

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will be possible. Questions have been raised about whether our drafting has achieved that. We shall of course consider that issue.

Clauses 9 to 16 deal with the child sex offences that involve ostensibly consensual sexual activity with children aged 13 to 15. We have been very careful to ensure that the law covers all the sexual activity we want criminalised. We have, for example, plugged the loophole discovered last year where a man persuaded two children to strip naked in front of him without committing an offence. These offences will criminalise both direct physical sexual activity and activity where no contact is made, such as forcing a child to watch a sexual act. Where no physical contact takes place, the maximum penalty available will be 10 years' imprisonment. The most serious behaviour involving direct physical contact will carry a maximum penalty of 14 years' imprisonment.

The Internet has opened up new possibilities for children both for learning and leisure. However, we need to ensure that we tackle those who want to use it to take advantage of the innocence of children. Following the recommendations of the Task Force on Child Protection on the Internet, we are creating a new offence to tackle the grooming of children both on- and off-line. The offence of meeting a child following sexual grooming and so on in Clause 17 will catch adults who undertake a course of conduct with a child leading to a meeting where the adult intends to sexually abuse that child either at that meeting or on a subsequent occasion.

This offence is complemented by a new risk of sexual harm order, provided for in Clauses 110 to 115, which will be used to prevent harm to children from sexually explicit communication or conduct where the adult has already engaged in such behaviour towards a child. This order could be used, for example, to stop an adult sending a child adult pornography or indecent text messages by mobile phone.

Clauses 18 to 27 re-enact, amend and extend the offence of abuse of a position of trust. The clauses make it an offence for a person aged over 18 to involve a child under that age in sexual activity where he is in a specified position of trust in relation to that child, for example where an adult looks after a child in a children's home.

Most child abuse takes place in the home. The balance of power within the family, and the close and trusting relationships that exist, make children particularly vulnerable within its environment. We must do all we can to prevent children being abused by those who are supposed to love and care for them. The offence of sexual activity with a child family member dealt with in Clauses 28 to 32 recognises that the modern family unit is often complex. We have therefore defined family relationships to take into account situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or "common law" partnerships.

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Children are not the only members of our society who are particularly vulnerable to sexual abuse. The sex offences review heard very disturbing evidence about the extent and nature of the sexual abuse of people with a mental disorder or learning disability. Existing legislation has offered inadequate redress when such people are sexually abused. It is essential the Bill remedies this, while recognising the rights of people with disabilities to a full life, including a sexual life. To this end we are creating three new categories of offences to protect people with a mental disorder or learning disability.

Clauses 33 to 51 create three new categories of offences to protect persons with a mental disorder or learning disability. The first prohibits involving a person in sexual activity where that person, by reason of mental disorder or learning disability, is unable to refuse. Someone is unable to refuse if he or she,

    "lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason), or he is unable to communicate such a choice to A".

The second category of offences criminalises involving a person with a mental disorder or learning disability in sexual activity by inducement, threat or deception. These offences recognise the fact that although such a person may be quite capable of giving his or her consent to sexual activity, he or she may none the less be vulnerable to relatively low levels of inducement, threat or deception.

The third category of offences of breach of a relationship of care criminalises those providing certain kinds of care who engage in ostensibly consensual sexual activity with those receiving it. This is necessary to protect a person with a mental disorder or learning disability who has the capacity to consent but may be particularly vulnerable to exploitative behaviour and thus may agree to sexual activity solely because they are influenced by their dependency on their carer.

I take this opportunity to acknowledge all the work that the noble Lord, Lord Rix, has done on behalf of people with a mental disorder or learning disability. The noble Lord, Lord Rix, put before this House last year a Bill to extend the protection offered by the law to vulnerable people. At the time I indicated that the Government intended to bring forward similar proposals as part of a wider package of reforms. I hope that the noble Lord, Lord Rix, feels that we have done his proposals justice. The House pays tribute to the extent to which the noble Lord has campaigned on these issues over the years.

The sexual exploitation of individuals is often organised for financial gain. Sexual exploitation in all its forms is despicable, but the commercial sexual exploitation of children is particularly abhorrent. This Bill brings more coherence and higher penalties to the criminal law surrounding prostitution, child pornography and trafficking. This is covered in Clauses 52 to 64. Paying for sexual intercourse with a child under 13 will carry a maximum penalty of life imprisonment; trafficking within the United Kingdom

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will, for the first time, be made a specific offence; and offences relating to child pornography will be extended to protect children up to the age of 18.

Clauses 70 to 74 provide for a number of offences: indecent exposure, voyeurism, intercourse with an animal, sexual penetration of a corpse and sexual activity in public. When the Bill was published, there was some confusion about the last of these; namely, sexual activity in public. We shall therefore look at the drafting of this offence again during the Committee stage of the Bill to make sure we get it completely right. The offence will send out a strong signal of our intention to protect people from being the unwilling witnesses to overtly sexual behaviour in public that most people consider should take place in their own homes, while recognising that what consenting adults do away from the eyes of others is not a matter for the criminal law.

The sexual offences that I have outlined today are sensible, consistent and balanced. We have dragged the law on sexual offences into the 21st century, in a way which will treat everyone in society equally. The discriminatory offences of buggery and gross indecency, which criminalise consensual sexual activity in private between men that would not be illegal between heterosexuals or between women, will be repealed at last.

Having in place a framework of offences that protects the public and enables abusers to be properly punished is only half the story. Equally important is the management of sex offenders in the community. That is dealt with in Part 2 of the Bill. Clauses 82 to 94 re-enact with amendments Part I of the Sex Offenders Act 1997, which established the obligation on a sex offender to notify their name and address and any changes to those details with the police. That process is commonly known as registration. Having the information is invaluable to the police in two ways. First, it helps the police monitor sex offenders living in the community. Secondly, it helps in the detection of sexual crime, as the police will immediately know of the whereabouts of any number of potential suspects.

The most important changes to the notification requirements are: reducing the period within which a sex offender must notify the police of a change of details from 14 to three days; reducing the amount of time that a sex offender can spend at an address other than his home address before having to notify that address from 14 to seven days; making all those on the register confirm their details on an annual basis, as at present there is no requirement for them to do so; giving the police the power to check the fingerprints and take a photograph of a sex offender each time a notification is made, not just on his initial notification; and requiring sex offenders to provide their national insurance number when making a notification.

However, the current requirements apply only to those convicted of offences in the United Kingdom. It is important that we can keep track of all known sex offenders who are in this country, whether they have been convicted of an offence here or abroad. We are therefore introducing a new notification order to

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make those convicted of sex offences abroad, whether they are British citizens or foreign nationals, subject to the same notification requirements if they come to the United Kingdom.

Additional protection will be offered by sexual offences prevention orders in Clauses 103 to 109, which combine existing sex offender orders and restraining orders, and will allow for whatever prohibitions on an offender are necessary to protect the public. For example, an offender could be prohibited from entering children's playgrounds or visiting swimming baths. Those orders will be available in respect of persons convicted of violent offences and who present a sexual risk, as well as those convicted of sexual offences. Breach of one of those orders will be punishable by a maximum penalty of five years imprisonment.

Protecting the public from sexual crime is a priority for the Government. We hope that the Bill demonstrates how committed we are to it. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)

11.23 a.m.

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