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Lord Lloyd of Berwick: I put my name to the amendment for the reasons given by the noble Lord, Lord Campbell of Alloway, and for the reasons so well stated on Second Reading by the noble Baroness, Lady Mallalieu. I then expressed my complete agreement with her and I am pleased to see her in her place. I can put the reason in one sentence. It is almost always a mistake to allow the statutory definition of a crime to depart too far from the general understanding of that crime, especially in a crime so serious as rape.

For centuries, rape has been understood as sexual intercourse by force, fear or fraud, or—as we would now say, putting it the other way round—sexual intercourse without the full and free consent of the woman. That is what rape still means to the man in the

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street. For centuries, penetration per anum has been known as buggery. Non-consensual buggery was always a very serious offence, but it was not regarded as the same offence as rape.

I remember well a case at the Old Bailey when I was a judge—it was not a case I was trying—in which the defendant denied with indignation that he had raped the complainant. But he went on to say, almost as an after-thought, that he had buggered her instead. Sadly for him, the indictment was immediately amended and there was not much he could do to avoid a hefty prison sentence. But for him, and I suspect a great majority of his fellow citizens, rape was rape and buggery was buggery.

Nevertheless, I understand and fully accept the reason why rape had to be redefined in law so as to include the non-consensual buggery of a man. And once that was accepted, it had also to include the non-consensual buggery of a woman. But why should it include the non-consensual penetration of the mouth? That is the question we must consider in dealing with the amendment.

The change in respect of buggery was brought about by Section 143 of the Criminal Justice and Public Order Act 1994, but not everyone realises—I certainly did not—that the original draft of that clause included penetration of the mouth as well as penetration of the anus as part of the definition of the crime of rape. However, penetration of the mouth was not accepted by the Conservative government when Mr Michael Howard was Home Secretary, and it was not pressed by the Labour opposition.

Therefore, the question I must ask both Front Benches is: why have they changed their minds? What has happened since 1994 in respect of forcible penetration of the mouth to show that the law has not been working? If there is no reason to believe that the law has not been working, I am wholly unpersuaded of the need for a change now unless we are simply going to change the law for the sake of changing the law.

I doubt whether the Minister remembers, but on Second Reading he suggested it might be useful for me to read the whole of the voluminous evidence contained in Part 2 of Setting the Boundaries. I regarded that suggestion as a challenge, which I duly accepted. As a result, I can say that the only evidence I can find in the whole of that volume which relates to the forcible penetration of the mouth came from a research project carried out in 1994—it happens to be the same year as the Criminal Justice and Public Order Act—referred to at page 203.

That case concerned a research project carried out among homosexuals. Out of the 219 cases considered, 90 per cent were charged as rape—that is, penetration per anum—and in only 10 per cent of the cases was the offence confined to penetration of the mouth. Obviously, that would be insufficient to make a change of the law now necessary. That is the only evidence which supports the move now proposed by the Government.

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I turn to the reason for leaving the law as it is. It is simply this: most people would accept the point made by the noble Lord, Lord Campbell, that while non-consensual penetration of the anus is a serious offence, it is less serious than penetration of the vagina. The reason generally given—and the reason given by the noble Lord, Lord Campbell—is the risk of pregnancy or the transmission of venereal disease or AIDS. But I believe that the real reason lies deeper than that. Penetration of the vagina is the more serious because the worst is always the corruption of the best. And forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable. If I am right about that, and if penetration of the mouth is indeed less serious than penetration of the vagina, as I believe it to be, by including penetration of the mouth in the crime of rape, one is, as the noble Baroness said, diminishing the crime of rape itself. We should not do that without very good reason.

I accept that there are some countries where forcible oral sex has been included in the definition of rape. The South African Law Commission proposed that it should even include penetration of the nose and the ears, although I am bound to say I find that hard to imagine. In any event, whatever other countries have done is no reason for us to follow.

No doubt in reply the Minister will say that oral penetration is a serious offence. So it is and we all agree about that. But why is it not sufficient to include it in Clause 3, since that clause also carries with it a life sentence? Surely, that will send out a sufficient signal—something which Ministers are always anxious to do—if a signal is indeed needed.

I have not put my name to the amendment tabled by the noble Lord, Lord Campbell, on that point because I am not altogether happy with the drafting and I would in any event keep the sentence to one of life imprisonment. Doing that, a new subsection (1) to Clause 3 would be so easy to draft. It would not even mean that the heading of the clause must be changed. It would read something like:

    "(1) A person (A) commits an offence if—

    (a) he intentionally penetrates the mouth of another person (B) with his penis,

    (b) B does not consent to the penetration, and

    (c) subsection (3) applies".

I hope that the Minister will give serious thought to that way of approaching the matter. It will achieve all he wants.

3.15 p.m.

Baroness Mallalieu: I rise to speak briefly in support of the amendment tabled by the noble Lord, Lord Campbell of Alloway, and to support what has just been said by the noble and learned Lord, Lord Lloyd of Berwick. At present, non-consensual oral sexual intercourse is dealt with in the courts in one of two ways: either as an indecent assault—which already carries heavy penalties—or, if rape has taken place, as an aggravating factor that will increase the ultimate penalty imposed. It may be that that is not sufficient

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and that a separate offence should be created to mark the gravity of this type of indecent assault, but for the reasons that have just been set out before the Committee, I believe that it would be wholly wrong simply to take the particular activity and put it in with the definition of rape.

I say that for two reasons. First, ordinary members of the public, in particular young people, draw a clear distinction between the two acts. I know that to be the case from my experience in the criminal courts, often dealing with young offenders in relation to sexual offences and thus learning something of the somewhat curious world—one that is remote from mine—of young people today. As I have said, a clear distinction is made. For example, a young girl may well be ready to consent to what is known in the estates of south London as "giving a shiner", whereas not for a moment would she dream of having full sexual intercourse.

Secondly, the legislation will deal primarily, although not completely, with younger people. However, the legislation must also speak to those ordinary people who serve on juries. They will have to look at a particular set of facts and decide whether what they have found fits the label of rape, which is something that juries take extremely seriously. I fear that an act is to be included which, for ordinary people, is not rape. I have discussed this with a number of people since the matter was raised at Second Reading. The usual response has been, "What planet are those people living on? Of course it is something quite different. It is serious, but different". Once you begin to import a set of facts which in the minds of those who will be trying such cases does not meet the label of rape, then difficulties will arise. I am sure that people serving on juries will acquit when there should not be an acquittal. There should be a specific conviction for a specific offence.

A number of suggestions have been made about how that might be done. The noble and learned Lord, Lord Lloyd, has suggested one way, while another is that set out by the noble Lord, Lord Campbell of Alloway, in Amendment No. 11.

I understand that the Minister has come under pressure from victims of such offences. They regard the offence as being as unpleasant as rape, and they may be right about that. If they are right, then we must accept it and ensure that the law is able to meet their concerns. But it is also different from rape. That is why I say that the two should not be put together.

The Minister also has the police telling him to follow this course, but to that I can say only that the Criminal Bar Association and many other bodies feel that it will be a mistake, for the reasons I gave at Second Reading. The change would alter the label of rape in a way which I believe would weaken the seriousness of that offence. Furthermore, I think that we could face a real danger of seeing acquittals in cases where juries feel that the label is not deserved in light of the particular facts of the case.

Despite what he may have been told by his officials, by pressure groups and by others, I hope that the Minister will see a way to meet the concerns of victims

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which does not undermine the prospect of correct convictions. That can be done by setting out in the way other noble Lords have suggested a separate, serious offence to mark the gravity of this kind of behaviour.

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