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Lord Falconer of Thoroton: One can understand why laymen might be confused. I have written down that, if the circumstances are present, the burden, as a matter of common sense, passes to the defendant. I accept that the noble Lord, Lord Thomas of Gresford, did not say that the burden, as a matter of common sense, passed to the defendant, but I understood that to be the thrust of what he said, and so did the noble Lord, Lord Skelmersdale.

Is that approach too complicated? A judge might say to the jury, "If you are satisfied that intentional penetration took place; if you are satisfied that the victim did not consent; and if you are satisfied that, immediately before the act of penetration took place, the victim was subjected, to the knowledge of the defendant, to threats of violence, it is for the defendant to satisfy you on the balance of probabilities that he believed that she consented". That is what the clause amounts to.

Lord Campbell of Alloway: It is not like that. The defendant must satisfy the jury that his conduct was such as would match the conduct—or characteristics, if you like—of a reasonable man. It is no good saying that he must do anything else: under Clause 78, he must do that. How can he do it without evidence?

Lord Falconer of Thoroton: In the light of the amendments, the only effect of Clause 78 is that if the penetration without consent is established and one or other of the circumstances under Clause 78(3), the burden shifts to the defendant to establish, on the balance of probabilities, that he believed that the victim consented.

As much as one tries to make that complicated, it is not. I utterly and completely repudiate what the noble Lord, Lord Thomas of Gresford, is saying; that this reflects an inability to trust the judges or the juries. It is far from it. We believe that the juries, properly instructed by a judge, are perfectly capable of understanding that question. I am supported in my approach by the fact that the noble Lord, Lord Thomas of Gresford, described what we are doing as, in effect, reflecting common sense. As the noble Lord said, in the circumstances that I described, surely the defendant has something to explain. If he has something to explain, let us place the burden, on the balance of probabilities, upon him. It reflects a straightforward shifting of the burden to where it should be.

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The noble Baroness, Lady Noakes, referred to workability. I explained how we think it should work. She must consider whether she thinks that that is workable. She said that it is a non-exhaustive list. But every single circumstance cannot be covered; we covered the main circumstances in relation to it.

As regards conclusive presumption, the noble Baroness, Lady Noakes, said that there are "grey areas". She cannot envisage any circumstances in which relying only on third party consent could lead to the situation arising. Neither can we. If she can think of an example, obviously we shall consider the circumstances in relation to that.

Baroness Noakes: If neither I nor the noble and learned Lord can think of a situation, why do we need that part of the clause in the Bill?

Lord Falconer of Thoroton: It leads to justice because it ensures that the right result is achieved. I indicated that Clause 78(7) and (8) reflect the existing law. The possibility referred to by the noble Baroness was that consent would have been given, had it been asked for, if there had not been a deceit. I cannot believe that the noble Baroness wishes a possible defence to arise in rape cases in which a defendant might say, "Although she did not consent, had I put it in a slightly different way she would have consented". I do not believe that that is a sensible amendment to the law.

The noble Lord, Lord Thomas, asked whether the Government have taken advice. Yes, indeed we have taken advice. We are advised that it is consistent with Article 6(a). I have so certified on the face of the Bill.

The noble Lord, Lord Campbell, deals with a number of other points. As he telegraphed to us before supper, he was going to deal with his Amendment No. 11, which is about dealing with penetration of the mouth. We went through that issue in some detail earlier. The Government believe that it is right to treat penetration of the mouth as a form of rape. That is why that has been put in Clause 1.

The noble Lord's approach involved making it a separate offence. With respect to the noble Lord, while we carefully considered that approach, we concluded, particularly on the basis of the evidence received by Setting the Boundaries, that the right approach was to make it part of rape.

In the light of my remarks, I hope that the noble Baroness feels able to withdraw her amendment.

Lord Thomas of Gresford: Perhaps I may start again on the question of the burden of proof. As the noble and learned Lord knows, there is an evidential burden and there is a persuasive burden. It may be that the evidence of the Crown will require, in practice, the defendant to get up and give an explanation. That can be put into a statute formally. The evidential burden is placed upon the defendant and he must give some evidence.

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But that is unnecessary. All that must happen is that sufficient circumstances arise for the defendant to be called upon to give an explanation. When he gives his explanation, the prosecution must disprove it. The burden of proof is on them to make the jury sure that his explanation is untrue. That is all I was saying.

The Bill raises shifting burdens of proof. If the jury are satisfied that there was intentional penetration, the second question is whether they are satisfied that the complainant did not consent. On a simple view, the judge would then say to the jury, which is provided for in Amendment No. 8, "Are you satisfied that he did not believe reasonably in her consent?". That is all.

Under this Bill, the judge has to say to the jury, "You've got over the first two hurdles. Let's come to the third point. If certain circumstances are proved so that you are sure about them, the burden shifts over to the defendant to prove that he did believe".

Let us take subsection (3)(a), for example. The judge would say to the jury, "Are you satisfied that any person was at the time of the relevant act using violence against the complainant or causing her to fear that immediate violence would be used against her? The prosecution has to prove that, members of the jury. Or if you are not satisfied about that, you might be satisfied under subsection (3)(b) that he was causing the complainant to fear violence. Are you sure about that? If you are sure about that, pause there for a moment. You've then got to consider this. It's for the defendant to satisfy you on a balance of probabilities. Now, hang on a minute, I've got to explain to you the difference between making you sure and satisfying you on the balance of probabilities. Has the defendant satisfied you on the balance of probabilities that he did believe that the complainant consented? If he has, well, he's not guilty. If he has not, you've then got to consider the matter as a whole. Finally—the burden of proof is on the prosecution—are you sure that all the ingredients of this offence are complete?".

In other words, a number of stages are added on to the simple framework that I am suggesting in Amendment No. 8; namely, the three simple ingredients. Those stages are: asking the jury to consider additional factors; telling them they have to be sure about them; explaining the transfer of the burden of proof; explaining what that burden of proof is; and then giving them final directions about it all. How this will lead to more convictions or fewer acquittals, I utterly fail to understand.

On Question, amendment agreed to.

9.30 p.m.

Lord Thomas of Gresford moved Amendment No. 8:

    Leave out Clause 1 and insert the following new Clause—

(1) A person (A) commits an offence if he does an act of sexual violation by rape or by unlawful connection.
(2) Sexual violation by rape is where A penetrates the vagina or anus of another person (B) with his penis—
(a) without the consent of B, and
(b) without a reasonably held belief that B consents to that penetration.

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(3) Sexual violation by unlawful connection is where a person (A) has sexual connection with another person (B)—
(a) without the consent of B, and
(b) without a reasonably held belief that B consents to that sexual connection.
(4) "Sexual connection" means—
(a) connection occasioned by the penetration of the genitalia or the anus of any person by—
(i) any part of the body of any other person, or
(ii) any object held or manipulated by any other person, otherwise than for bona fide medical purposes, or
(b) connection between the genitalia of any person and any part of the mouth or tongue of any other person.
(5) A person guilty of an offence under this section is liable, on conviction, to imprisonment for 7 years."

The noble Lord said: I have already given enough of an introduction to this, blazoned in the course of our discussions today. Let me try to explain the purpose of a number of aspects of the issue.

Amendments Nos. 8 and 10 must be taken together because, instead of the single charge of rape, I am suggesting in these two amendments that there should be two levels of what I have described as "sexual violation". Why do I do that? There are a number of practical reasons. The first is that, if you have a simple charge of sexual violation, there are fewer matters to be proved. Secondly, if a person is charged with aggravated sexual violation and the prosecution think it fit to accept a lesser charge, there is a considerable saving, in that the complainant is not required to give evidence.

Earlier today the noble Baroness, Lady Howarth of Breckland, and other noble Lords spoke of how traumatic it is for the complainant, the victim, to have to describe her experiences in court. That is a matter which is always in the forefront of the minds of those advising a defendant charged with rape. If there is any way of avoiding calling the complainant and thus not subjecting her to the stress and trauma of giving evidence, then that route should be taken. So the two stages of rape that I propose are the simple offence followed by the aggravated offence. I shall go through those in some detail.

I propose that the term "sexual violation" should be used rather than the word "rape". The label is important, as the noble Baroness, Lady Mallalieu, pointed out this afternoon. It is my view, based on experience, that the word "rape" itself places a heavy burden on the jury when considering the verdict. Jurors know that the crime of rape carries a heavy sentence. In cases involving date-rape, acquaintance rape or marital rape, they know that if they find the defendant guilty the level of sentence will be four or five years' imprisonment and possibly considerably more.

If we were to adopt the New Zealand approach of describing the offence as sexual violation which can be committed in two ways, then something—I wonder what is the correct word, the stigma or the force—of the word "rape" would be removed from the consideration of the jury. It would be concerned with sexual violation

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either by rape or by unlawful connection. I have defined sexual violation by rape as penetration by A of the vagina or anus with the penis,

    "(a) without the consent of B, and

    (b) without a reasonably held belief that B consents to that penetration".

Let us pause for a moment. If the words "reasonably held belief" are used, then, first, it is possible to get rid of the Morgan defence of "unreasonably held belief" and, secondly, it is possible to remove from the Bill altogether the provisions concerning the presumptions that we were discussing a moment ago and which we find so objectionable. So the words,

    "without a reasonably held belief that B consents to that penetration"

provide a simple concept which can be explained to a jury. What it is important to note is that by using the phrase, A will not be compared with the hypothetical "reasonable person". Whether or not he shares those characteristics, the jury is asked to look at A; that is, to focus on the defendant. Did A believe that B consented? Did A believe that reasonably? Here the judge may say, "Members of the jury, the question of whether the belief was reasonable is a matter entirely for you. You can look at A, consider who he is and what is his background. You can consider what signals were given to him and what inquiries he may or may not have made. Then you can ask yourselves whether, in your view, the belief that A held in B's consent was reasonable. It is a matter for you".

That is what has been described in New Zealand as an "objective/subjective" approach. In other words, it introduces the concept of what is reasonable but does not compare the defendant with the hypothetical "reasonable person"; the jury look at a person in the context of the offence alleged against him.

So that is sexual violation by rape. Sexual violation by unlawful connection is framed in the same way. It is,

    "where a person (A) has sexual connection with another person (B) . . . without the consent of B, and . . . without a reasonably held belief that B consents to that sexual connection".

Again, it is a simple matter on which to direct jurors and for them to understand.

"Sexual connection" does not relate merely to oral sex, although, as the Committee will see, that is covered in the proposed new Clause 1 (4)(b). New subsection (4)(a) includes the penetration of the genitalia or the anus by,

    "any part of the body of any other person, or . . . any object held or manipulated by any other person, otherwise than for bona fide medical purposes".

So that expands the concept of penetration to objects and to parts of a person's body other than the penis. As I say, new subsection (4)(b) refers to oral sex.

For this unaggravated offence, I suggest a maximum sentence of imprisonment of seven years. Why seven years? Because, at the moment, simple rape carries a sentence of approximately five years. A maximum of up to seven years for simple rape without any aggravating features is consistent with the current level of sentencing.

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Amendment No. 10 refers to circumstances which aggravate the simple offence into something more serious and which can carry a sentence of life imprisonment. Subsection (1) states:

    "A person (A) commits an offence of aggravated sexual violation if he does an act of sexual violation by rape or by sexual connection"—

that refers back to the previous new provisions—

    "in aggravated circumstances, and A knows that those circumstances existed".

The aggravated circumstances I have suggested are taken from Clause 78. These include the use of violence or the fear of violence; the complainant being unconscious, unlawfully detained or disabled by an incapacity to communicate; deception; impersonation or the complainant being under the age of 13. If any of those aggravated circumstances apply, the more serious offence is committed, carrying a sentence of life imprisonment.

I make no distinction between what I described earlier as "stranger rape" or "acquaintance rape" or "marital rape". The proposed clauses as drafted make no distinction. All that is necessary to bring in the more serious aggravated offence is that these aggravating circumstances exist. One can imagine, for example, that, in a case of stranger rape, violence or the fear of violence will be used. So immediately stranger rape will come into the heavier category.

Some of the other aspects will always apply in cases of stranger rape in one way or another—they may also apply in cases of acquaintance rape and marital rape—and will increase the sentencing power of the court up to life imprisonment. That means that in order to find someone guilty of aggravated sexual violation by rape the prosecution must prove penetration; that it was without the consent of the complainant; and that it was without A's reasonably held belief that the complainant was consenting. That is simple, understandable and easy to explain. There are no presumptions, no shifting burdens of proof, no hypothetical reasonable persons with or without the characteristics of the complainant. We can trust a jury to understand this and bring home a correct verdict in the appropriate case.

Amendment No. 19 would remove Clause 3. All that is required to deal with the sexual violation of a child under 13 is to have a new clause stating:

    "For the purposes of sections 1 and 2—"

namely, sexual violation by rape or unlawful connection or aggravated sexual violation—

    "(a) a child under the age of 13 is incapable of giving consent; and

    "(b) the knowledge or belief of A as to that child's age is irrelevant".

Again, those are simple, easily understandable concepts which can lead to justice being done. In addition, I oppose Clause 4.

Amendment No. 22 deals with Clause 5 on sexual assault and would leave out subsection (1)(d) which provides that subsection (2) or (3) applies. Subsections (2), (3) and (4) deal with the reasonable person point and the Section 78 point that we discussed in relation

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to rape. All that would need to be proved for sexual assault is that A commits an offence if he intentionally touches another person, the touching is sexual, B does not consent to the touching, and, as Amendment No. 22 would specify:

    "(d) A does not reasonably believe that B consents".

"Reasonably" implies an objective element but it still looks at the person and the circumstances and what could be expected to be his belief in those circumstances and having regard to who he is. Again, that would get rid of the Morgan defence but do it in an easily comprehensible and simplified way without all the difficult mechanisms contained in the Bill as drafted.

The same amendment would be made to Clause 7, which is about causing a person to engage in sexual activity without consent. Amendment No. 34 would omit subsections (1)(d). Subsections (2), (3) and (4) contain the reasonable person test, the Section 78 presumptions and whether they are rebuttable or conclusive. The clause states that a person commits an offence if:

    "(a) he intentionally causes another person (B) to engage in an activity,

    (b) the activity is sexual,

    (c) B does not consent to engaging in the activity".

Under Amendment No. 34, paragraph (d) would read:

    "A does not reasonably believe that B consents".

If anybody thinks that we on these Benches are in any way trying to weaken the Government's thrust to get more convictions or whatever, they are entirely wrong. We are much more concerned to ensure that there are fewer acquittals when there should not be acquittals and fewer verdicts of guilty when there should not be verdicts of guilty. We believe that simplification and clarity will do that and not all these complicated mechanisms in the Bill which, as we have said from the beginning, have been drafted by people without practical experience of how the court works. I beg to move.

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