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Lord Falconer of Thoroton: With the greatest respect to the noble Lord, it is not enough. The noble Lords who have spoken have forgotten what happens in practice. Many people engaged in caring for people with a mental disability are absolutely first class and spend their time devoting themselves carefully to the care of those in their charge but, as Setting the Boundaries states:

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    care. Others, however, find that the provision of care provides a unique opportunity to those in their charge for their sexual gratification with little chance of discovery or effective redress".

That point has been made to me privately by the noble Lord, Lord Rix, and those who work on behalf of those people. It has been forcefully made to me. I accept the view that, although the offences of sexual activity with people unable to consent and sexual activity brought about by threats or inducement get you some of the way there, they do not get you all the way there. They do not cover cases where you can see a care worker abusing somebody in their charge, and where that person cannot give evidence that would convince a court. That is why these offences are in their present form and why they are included in the Bill. The noble Lord, Lord Rix, made the point absolutely clearly to me. He has pleaded that they should not be regarded as some sort of residual offence but as a vital part of the protection.

The noble Lords, Lord Campbell and Lord Thomas, put the lawyers' points with great effectiveness. But, because they do not trust judges and juries enough, they exaggerate how complicated the offence would be. Would it be complicated for a judge to say to a jury, "If you are satisfied that there is a relationship of care between the defendant and the victim—that means that the defendant is involved in the care of the victim—then it is for the defendant to satisfy the jury that he did not know there was a question of mental impairment"? That does not seem remotely unreasonable. It seems to reflect the common sense of the position. Because of the ECHR position, we are advised that the burden of establishing the reasonableness required—that if the defendant did not know he should have known—must be on the prosecution.

With respect, the reason for the distinction from sexual activity where there is no capacity to consent or sexual activity relying on inducements and threats is that in those earlier sections there is no relationship of care, whereas in these sections there is one. We are saying that once that relationship is established, and the sexual activity is established, it should be for the defendant to establish that, despite the relationship of care, he did not know the precise circumstances of the victim. With the greatest respect, that seems a very sensible way of proceeding.

8 p.m.

Lord Thomas of Gresford: Obviously, I shall consider with some care what the Minister has said. However, it seems that he has not dealt with the fact that the person in the care of the care worker is a matter that goes to sentence. That is essentially the difference.

Lord Falconer of Thoroton: The question asked was what is the difference between the earlier offences, where there is no relationship of care, and ones where there is that relationship. It is because there is a relationship of care that the burden then moves. If you

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are caring for somebody, the reasonable assumption is that you will know the condition of that person. That is why the distinction exists.

Lord Thomas of Gresford: I do not, therefore, see why it is at all difficult for the prosecution to prove it. They must prove it in relation to anyone else. It is easier to prove it if the person concerned is a care worker and has the victim in his charge. It is much simpler. As the noble and learned Lord said himself, the assumption is that the care worker would know anyway. That is as far as the prosecution must go—they must simply prove it. I shall consider what the Minister says. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 227 not moved.]

Lord Falconer of Thoroton moved Amendment No. 228:

    Page 20, line 35, leave out subsection (3).

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 229:

    Page 20, line 36, at beginning insert—

"(3A) A person guilty of an offence under this section, if the touching involved—
(a) penetration of B's anus or vagina with a part of A's body or anything else,
(b) penetration of B's mouth with A's penis,
(c) penetration of A's anus or vagina with a part of B's body, or
(d) penetration of A's mouth with B's penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless subsection (3A) applies,"

The noble and learned Lord said: I beg to move.

Baroness Noakes: Have these amendments been spoken to?

Lord Falconer of Thoroton: This amendment is part of a group and must be debated with the amendments of the noble Lord, Lord Adebowale. As the noble Baroness, Lady Noakes, was about to point out, these amendments go with those relating to penalty in respect of the offences committed by care workers.

Amendments Nos. 231 and 231, which were tabled by the noble Lord, Lord Adebowale, emphasise the seriousness of offences where a care worker engages in sexual activity with someone in his care who, by virtue of his mental disorder or learning disability, is in a vulnerable position and could be improperly influenced into sexual activity by those who care for him. If that influence goes beyond that which is implicit in the relationship of care and involves inducement, threat or deception such that the individual's ability to choose freely whether to engage in sexual activity is compromised, or if the individual

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lacks the capacity to consent, other offences can be charged that carry the penalty that the noble Lord, Lord Adebowale, seeks.

Moreover, we have sought to define the relationships of care widely. A series of government amendments that we shall come to later widens the scope further to ensure that those providing care, assistance or services in connection with the victim's mental disorder or learning disability are included. We take the view that a maximum penalty of life imprisonment in those circumstances, as the noble Lord proposes, goes too far and is disproportionate, having regard to other offences both in this Bill and beyond.

We are sympathetic to suggestions that the penalties for this clause are too low. Our amendments would increase the penalties to 14 years when penetration is involved and 10 years when it is not. We have gone quite a considerable way, but we think that a balance must be struck. In the light of that, I very much hope that the noble Lord, Lord Adebowale, will be able to withdraw his amendments.

Lord Adebowale: I am pleased that the noble and learned Lord has introduced an amendment that raises the issues covered in Amendments Nos. 231 and 233. I wish to speak to both amendments. They address points raised by Turning Point, Mencap, Respond and others. I pay tribute to the noble Lord, Lord Rix, who raised the important issue when he introduced his own Bill last year. I am also indebted to the Minister for responding very positively to the concerns raised. Given the importance of this issue, which is central to the Bill, I wish to set out my views in some detail.

There are many people with learning disabilities living in a care setting who experience abuse as a norm and, sadly, expect it as part of their life. Care environments may offer opportunities for abuse without detection. The fact that one party is in a position of power can influence the availability of the other party of consent. Some staff members may exploit their power to ensure compliance to sexual acts. For this reason, compliance to sexual acts should not be confused with informed consent. Given the position of trust and the relationship of care, such behaviour is as serious as having sex with a person who cannot consent to sexual relations. In addition, cases which have come to court recently have shown that force is unnecessary. The absence of force is more a barometer of the power staff hold over people with learning disabilities rather than a reflection of a lack of negative intent on behalf of the staff perpetrator. People with a learning disability are often powerless. They tend to be under control rather than having the opportunity to exercise control in their lives.

I support all the recommendations to strengthen the law to protect people with learning disabilities who live in residential accommodation or similar institutional care. Clearly, there is a social evil that has to be dealt with by the criminal law.

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Research shows that there is a bias towards offences in a service setting—it is a dangerous place as far as sex crime is concerned. It is appropriate for additional protection to be put in place to cover individuals who require care and support and are therefore vulnerable to exploitation by those providing that care or support. For example, in one case a woman aged 22 was raped and sexually and physically abused for more than a year by a male care worker. However, the judge ruled that the woman was not capable of giving evidence and dismissed the trial. I need not inform noble Lords of the damage this caused to the woman and her family.

Abuse within a care setting has many attributes. It is often invisible and warning signs are often ignored. It is characterised by the failure of care staff to concern themselves with abuse that takes place.

My amendment and the Minister's amendment serve to distinguish between acts of penetration and other forms of sexual activity, including sexually inappropriate acts such as rubbing up against someone's private parts through their clothes for sexual gratification. Both should be an offence but the former is obviously more serious and should carry a more serious penalty, which my amendment, and the Minister's amendment, seeks to achieve. I am pleased that the Government have moved on this issue and responded to issues raised by Turning Point and others. Some good progress has been made.

I want also to address other issues raised in Amendments Nos. 229 and 232. This goes a long way to answer my concerns raised at Second Reading about the current proposals on sentencing. At Second Reading I referred to the Longcare case in Buckinghamshire. In the residential home there were some people with a learning disability with no communication skills and who could not consent to sexual relations. There were others who had the capacity to consent but who were scared to speak out against people in authority. They were forced to comply because of the authority such people held or because of the relationship of trust. Both groups of people were forced to undress and watch pornographic videos. They were also forced to have sex with one another and were raped and physically assaulted. All 50 residents were in a relationship of care and suffered serious abuse at the hands of the notorious Gordon Rowe and his staff at the two homes.

It would not be fair, just or equitable if the law were to distinguish between different people in a home. I have argued that it would be wrong if the law levelled a life sentence for those who lacked the capacity to consent but gave a shorter sentence for those who had some capacity but who clearly did not give free agreement. This is particularly the case where both groups are in the same relationship of care or trust and suffer the same pain and distress. Perpetrators should not receive shorter sentences and an offence should not be downgraded in cases that clearly amount to rape.

I am concerned that the term "abuse" can be misleading. It often minimises the impact of incidents that are often serious offences. I hope the noble and

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learned Lord could agree that sexual activity that took place at Longcare is better described as rape and sexual assault rather than,

    "consensual sexual activity, which is nevertheless abusive".

The amendment does not yet achieve complete parity with the sentencing provisions for people who cannot consent. However, it is a welcome improvement. It represents a doubling of the sentence for the most serious crimes and the Government should be commended for responding positively to concerns raised by my organisation, Turning Point, and others. I hope the Minister can be persuaded to go one step further and have a maximum life sentence for the most serious breach of trust offences.

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