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Baroness Blatch: I wish to speak to Amendment No. 351. Again, I find myself out on a limb. Naturists have found many friends in this House. We know that they have areas that are properly set aside, usually away from the public gaze. However, my concern with the amendments, and especially with Amendment No. 351, is that a kind of naturists' charter is being established.

The amendment causes problems by making nudists a special category and by creating the concept of,

It may be that social nudity is customarily practised on a very public beach, much to the annoyance of locals and holidaymakers who arrive at the beach, only to be confronted by dozens of naked people. I have already mentioned the problems on some National Trust land. Those people may be committing an offence under Clause 70, but if the amendment were accepted, the innocent passer-by who reported them to the police might find himself accused of being a voyeur, contrary to Clause 71.

The fact is that if nudism is genuinely private, its practitioners are already protected. Clause 71(1)(a) protects persons who are "doing a private act"—or "engaging" in one, as my noble friend put it. If, however, the act is public and itself constitutes exposure, it should not be protected. Indeed, it would seem remarkable—not to say impossible—to police, if a person could walk naked along a beach where nudists often gathered, then allege that particular passers-by were obtaining "sexual gratification"—in the words of Clause 71—from looking at them.

The offence as redrafted by government Amendments Nos. 350 and 352A, which have just been dealt with in a previous group, protects those who are naked within a structure, such as a building or a tent, where privacy can reasonably be expected. To extend that protection beyond the walls of a structure to any,

    "place in which social nudity is customarily practised",

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could create a new legal right to social nudity. I am sure that that is not the intention either of the Bill or of my noble friend's amendment.

Lord Falconer of Thoroton: The noble Baroness, Lady Noakes, did not comment on my amendments. She spoke only to Amendment No. 351, which was not grouped with them, but I have no problem with dealing with it at the same time.

Baroness Noakes: I spoke on it only because it would have been pre-empted.

Lord Falconer of Thoroton: I am happy to speak about it.

The offence at present protects only those engaging in private acts in places where they could reasonably expect privacy, such as houses and structures of various sorts. The noble Baroness, Lady Noakes, is very unwise to suggest that it be extended in its coverage. No doubt some of those who engage in nude sunbathing or naturism would prefer not to be looked at by passers-by, especially when those passers-by are looking for sexual gratification. However, many of the places where such nudity is customarily practised, such as nudist beaches, are relatively easily overlooked. It would be quite wrong to criminalise those who witnessed such nudity while going about their daily business, even if they derived sexual gratification out of what they saw.

Those who choose to be naked in locations other than structures where they might reasonably expect privacy do so at the risk of someone seeing them and being sexually gratified. Those who engage in social nudity inside structures where they might reasonably expect privacy will be protected by the legislation. However, it would be imprudent to extend it. Therefore, I hope that the noble Baroness will be gratified that the amendment is about to be pre-empted.

Lord Skelmersdale: Would the Minister answer my question about "doing" an act, as opposed to being engaged in it?

Lord Falconer of Thoroton: That is a difficult question, and one that I shall take back to the parliamentary draftsman, as it would be unwise of me to deal with it myself.

On Question, amendment agreed to.

[Amendment No. 351 not moved.]

Lord Falconer of Thoroton moved Amendment No. 351A:

    Page 32, line 34, leave out "or operates"

On Question, amendment agreed to.

[Amendment No. 352 not moved.]

Clause 71, as amended, agreed to.

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Lord Falconer of Thoroton moved Amendment No. 352A:

    After Clause 71, insert the following new clause—

(1) The following apply for the purposes of section 71.
(2) A person is doing a private act if the person is in a structure which, in the circumstances, would reasonably be expected to provide privacy, and—
(a) the person's genitals, buttocks or breasts are exposed or covered only with underwear,
(b) the person is using a lavatory, or
(c) the person is doing a sexual act that is not of a kind ordinarily done in public.
(3) Observation means any observation, whether direct or by looking at an image produced in any way.
(4) In section 71 and this section—
"image" means a moving or still image, produced by any means, and
"structure" includes a tent, vehicle or vessel or other temporary or movable structure."

On Question, amendment agreed to.

Clause 72 [Intercourse with an animal]:

[Amendment No. 353 not moved.]

On Question, Whether Clause 72 shall stand part of the Bill?

Lord Lucas: I should very much like to understand the Government's motivations in the drafting of this clause. There are many things of a sexual nature that people choose to do in private and which most of us would find more or less disgusting. Intercourse with an animal is one of them, but it is one which in some societies is considered normal. As Masters and Johnson established, it is quite prevalent in parts of the country, especially in the countryside as such and among farm boys. They found a 50 per cent incidence in a bit of Ohio that they studied. It is not unknown or uncommon, certainly not in common parlance. To judge from the spam that arrives in your Lordships' House, a good deal of goes on in the world of pornography, too.

I want to know what the motivation is for making this particular sexual practice a crime. I cannot see that it has anything in particular to do with the human aspect of it—I imagine that it has to do with the protection of animals. I do not know whether the Minister has any evidence on the effect of this activity on animals. If the provisions relate to the effect on animals, why is it considered better that the sheep should be dead—should have been killed immediately before the act—rather than living through it? Why is that thought to excuse the act?

Why are animals such as gerbils excluded? The noble and learned Lord, Lord Falconer, may care to look up "felching" in his dictionary, or perhaps the box can do that for him. That is something that is widely referred to on the Internet and he will find it in such common books as the Darwin Awards. There, at least one incidence of that going wrong is amusingly recounted. I want to understand the Government's motivations. Why, among all human sexual perversions, is this one chosen to make

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an offence? Why has the scope of the offence been set as it is? I am asking so that I can understand better at Report stage how I would like the clause to differ.

8 p.m.

Lord Monson: Is not bestiality already an offence—albeit one of those offences where the prosecution rate is well under one per cent of the incidents that take place?

Lord Falconer of Thoroton: At present intercourse with an animal is an offence under Section 12 of the Sexual Offences Act 1956, which also covers buggery and carries a maximum sentence of life imprisonment. We are repealing Section 12. We take the view that a specific offence is needed to cover sexual activity with an animal and should be separated from offences against people. Clause 72 covers intentional penile penetration of the vagina or anus of a living animal and makes clear that the offence also includes causing or allowing the penis of a living animal to penetrate a person's vagina or anus. That behaviour is generally accepted to be deviant. The offence is not included on the basis of cruelty to animals, which is dealt with in other statutes. We believe that it should be a criminal offence, but the previous maximum penalty of life imprisonment is disproportionate. We therefore propose a reduced maximum penalty of two years' imprisonment or a fine. That is our thinking. I hope that that answers the points raised by the noble Lord, Lord Lucas, and the noble Lord, Lord Monson.

Lord Lucas: I am still interested in why the Government think that committing that offence is different with a dead animal rather than a live one. Why should it be less of an offence if the man has killed the sheep just beforehand? Why should it be less of an offence if the animal involved is inserted as a whole object rather than part of the animal? I should like to hear the Government's justification of the scope of the offence and why it should have been phrased in this way.

Lord Falconer of Thoroton: It is the judgment made about the sort of conduct with animals which should be criminalised. We have drawn the line where we have drawn the line. There is no merit in saying that that is not this bad or that bad. What one has to do is see where we have drawn the line and ask whether we have done that in the right place.

Clause 72 agreed to.

Clause 73 [Sexual penetration of a corpse]:

[Amendment No. 354 not moved.]

On Question, Whether Clause 73 shall stand part of the Bill?

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