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Lord Falconer of Thoroton: This is exactly the same argument as we had in relation to Clause 27. I indicated then that where the formation of the relationship was by the abuse of an existing relationship and it continued after the Act came into force, then I did not believe that there should be a defence. This is precisely the same point as regards familial relationships. Having reconsidered the position, we support the noble Baroness, Lady Blatch, in removing this clause from the Bill.

Baroness Blatch: I am very grateful to the noble and learned Lord. I fully support what he has said and hope that this clause will not stand part of the Bill.

Clause 32 negatived.

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Clause 33 [Sexual activity with a person with a mental disorder or learning disability]:

Lord Adebowale moved Amendment No. 204:

    Page 15, line 38, leave out "refuse" and insert "consent"

The noble Lord said: In moving this amendment I also wish to speak to Amendments Nos. 212 and 218. These are probing amendments to ascertain the rationale for using the terms "refuse" and "choose" rather than the term "capacity to consent". It may be helpful to group these amendments with those in Clause 34 as they address the same substantive points.

Capacity to consent is central to determining whether a relationship is appropriate for a person with a learning disability. The failing in the current criminal law is that it does not define capacity to consent and does not set out who can and cannot consent to sexual relationships and in what circumstances. It wrongly categorises people as being a mental defective or not a mental defective rather than focusing on whether an individual can consent to sexual relations in particular circumstances. The meaning and the effect of the common law is also subject to some legal debate.

Certainly an act of submission without any understanding of what is taking place cannot possibly constitute consent. I should like to remind the noble and learned Lord, Lord Falconer of Thoroton, of the case of R v Jenkins. In that case David Jenkins was a support worker in a residential unit. He admitted having sexual intercourse with a woman resident. When it was discovered that she was pregnant DNA tests confirmed he was the father. At the trial experts agreed that the woman could name only some body parts, could not distinguish acts of sexual intercourse from other pictures shown to her and had no understanding of pregnancy or contraception. Plainly, she lacked the capacity to consent, as we would understand the term.

However, the judge ruled that she had given consent through her "animal instincts". This case alone is a stark reminder of the need for new legislation and for laws to ensure that those who cannot consent have absolute protection of the law. It is alarming not only because it would allow abusers to claim that sexual relations are not abusive, but also because it dehumanises the person with a learning disability and robs them of their privacy and dignity.

As regards the words "refusal" or "consent", I agree that in order to consent to sex an individual must understand what is proposed and its implications and be able to exercise choice. The word "choice" reflects cases in which someone is in a position of power over another, so that person is unable to refuse or choose to have sex. There is a difference between "choice" and having the freedom to make that choice. Someone may comply with another's request for sex, but that does not mean that the choice to have sex has been exercised freely or without undue influence.

There is a sound basis to preferring the term "consent", over and above the niceties of the English language. I have already explained that the word "consent" is pivotal in determining whether an act is

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abusive. The BMA and the Law Society have published guidance that uses the test of capacity to consent to sexual relations. The phrase "capacity to consent" has also been thoroughly tested in case law. It is a valid defence to most sexual offences committed against people of all ages. The term "consent" is used by parliamentary draftsmen in many criminal statutes, but has not been defined.

I am mindful of the Law Commission's draft report and the draft Bill on capacity and the Government's commitment to introduce new capacity legislation when parliamentary time allows. The Law Commission and the two Government consultation documents on mental capacity—Who Decides and Making Decisions—use the term "capacity to consent". I seek clarification from the Government as to why they have departed from that wording. For my part, I am uncertain as to whether inability to refuse will give less or more protection to people with a learning disability. However, I am clear that the law should protect people who are unable to give any consent to sex.

There is sound precedent for using the term "unable to consent" and that should be reflected in the offence. If we proceed with the terms "choice" and "refuse", I would like an assurance about whether it will be necessary to revisit and redraft the clause when the new mental capacity legislation is in place.

Lord Astor of Hever: We on these Benches support the probing nature of the amendments. We question the wording of the clause.

Ability to consent and ability to refuse are different, the first demonstrating active agreement and the second simply describing where someone could not demonstrate their unwillingness. Other clauses in the Bill discuss consenting to sexual activity, and it is unclear why the Government have decided to change their stance and use the words "unable to refuse" and have opted to refer to choosing to agree to the touching rather than consenting.

Baroness Blatch: I also support the amendment tabled by the noble Lord, Lord Adebowale. He has made an extremely persuasive case and, unless the noble and learned Lord can make an even more persuasive case, I shall continue to support the amendment.

Lord Thomas of Gresford: We on these Benches would be interested to know how the words "refuse" and "consent" are to be taken in regard to Clause 77. That clause defines consent in a way that would probably be incapable of understanding in the case of a person with a learning disability. We welcome an explanation from the noble and learned Lord.

Lord Rix: I shall be on my feet a number of times in the next few minutes, so all I shall say is that I fully support the amendment that my noble friend has tabled.

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Lord Campbell of Alloway: I suppose that there must be something wrong with me, but I cannot see the distinction in any practical context of lacking a capacity to consent and lacking the capacity to choose whether to agree. I cannot see that in the definition of the mental state there is any practical distinction. However, I may have misunderstood the situation.

2.45 p.m.

Lord Falconer of Thoroton: The amendment raises important wider issues about the definition of the capacity to consent—I use that term in a non-technical sense—to which we shall come under later amendments. For the moment I shall address only the technical issue that the noble Lord, Lord Adebowale, raises in Amendment No. 204.

The amendments are concerned with a situation whereby someone with a mental disorder or learning disability is approached to engage in sexual activity. The issue is whether at that time they were able to understand enough of what was proposed to refuse if they did not want to engage in sexual activity. The clauses as drafted define the criminal behaviour in terms of it being committed against someone who is unable to refuse being subjected to it. That clearly defines the vulnerability of the victim in these cases and does so in straightforward language. That does not seem to amount to any substantive change. The proposal is perhaps designed to probe why we have chosen the words that we have.

The answer is a technical drafting point. If we used the word "consent" it would import the definition of consent at Clause 77, which states that,

    "a person consents if he agrees by choice, and has the freedom and capacity to make that choice".

So the Bill provides that a person can consent only if he has the capacity to choose. As Clause 33(2) is meant to be a definition of capacity to consent, incorporating the word "consent" would make the definition circular. That is why we have used different words. Noble Lords can consider the point by looking at the relevant provisions. However, we have made the decision because of that good drafting point. In those circumstances, I invite the noble Lord to withdraw the amendment.

Lord Rix: The very point that the noble and learned Lord has just made was made in my briefing from Mencap. Although I wish to support my noble friend, perhaps it is because of loyalty to him as well as a belief that his description of people with a learning disability must commend itself to the Committee.

Baroness Blatch: I have a question for the Minister in the light of his explanation. I am still persuaded by the noble Lord, Lord Adebowale. If a person is propositioned in these circumstances but has not consented; if the only test—should the case come before the courts—is whether they had a capacity to refuse; and if it was proven that they could perhaps have refused but did not, or it was deemed that they had not refused, then, although they had not consented, they would be left without a defence. The victim would still

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be a victim and there would be no remedy in court, simply because the only test was whether they had the capacity to refuse. It seems that there is a lacuna. I am not sure that the noble and learned Lord has been more persuasive than the noble Lord, Lord Adebowale.

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