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Lord Falconer of Thoroton: My Lords, we are not persuaded of that. We believe that the right course is to keep them within the same offence. Rape is charged now in an indictment simply as the defendant on such and such a day raped X—X being the name of the

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victim. It is right that it should be left that way. It would be quite wrong to require the prosecution, in drafting the indictment, to formulate specifically which of two ways it puts the case. I am sure that that is the right course.

Lord Lloyd of Berwick: My Lords, how does a defendant plead to such a count?

Lord Falconer of Thoroton: My Lords, there will be absolutely no difficulty at all in relation to that. There will be no difficulty in the defendant deciding whether or not he pleads guilty to a charge of having sexual intercourse with the victim without her consent. With the greatest respect, the noble and learned Lord is exaggerating the difficulties in relation to that.

Lord Thomas of Gresford: My Lords, perhaps I may assist the noble and learned Lord. The position today is that if a person pleads guilty to a charge such as rape he will almost inevitably agree the basis of plea to avoid a hearing as to what is the basis of his plea. He will therefore set out the basis—whether it is subjective or objective, to use the noble and learned Lord's expression—and, if the prosecution accepts that basis of plea, the plea will then go forward and sentencing will occur.

Baroness Kennedy of The Shaws: My Lords, in accepting that a judge would direct the jury as to enduring characteristics, I should be grateful if the Minister could make it clear to the House that we are talking about enduring characteristics such as youth or mental impairment and not cultural differences or people being able to pray in aid that because of their culture a woman who presents in a particular way may be indicating availability. It is very important that a licence is not given under which it could be claimed that there is a characteristic in the accused which would allow for a certain degree of unfair practice.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for dealing with the point raised so effectively by the noble and learned Lord, Lord Lloyd. As to the point raised by my noble friend Lady Kennedy of The Shaws, it would be unwise for me to restrict the precise characteristics to which a judge could direct a jury. It will depend upon the circumstances of a case. The noble Baroness is obviously right to refer to the enduring characteristics of age and mental impairment but I should not like to rule out other circumstances. One will have to leave it to the good sense of judges and juries.

As to the question of presumption, we propose that where the victim has not consented and where, for example, immediately before or during the sexual act which founds the charge she is subjected to violence, it is for the defendant to prove on a balance of probabilities that he believed that she was consenting. In other words, he has to give evidence of something that was completely in his own mind where it is accepted, or it is proved, that the victim was not

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consenting and there had been violence beforehand. Is that reasonable and sensible? We believe that it is because the defendant has to give evidence of what went through his mind. He has to establish to the satisfaction of the jury—on the balance of probabilities, not beyond a reasonable doubt—that, despite the fact that she did not consent, despite the fact that he was inflicting violence on her at the time, he nevertheless believed she consented. It is a fair, just, proportionate and appropriate way to deal with the issue. That is the basis of our case in relation to the presumptions. It is sensible and will assist.

On previous occasions the noble Lord has said in the course of debates that that is how the judge and the jury would operate anyway in relation to such a case. If that is how they would operate anyway, let us make the law reflect the way that a judge and jury would operate in a sensible case. There is a place for the presumptions. They have been sensibly and appropriately limited and will assist in the good administration of justice.

In conclusion, with the greatest respect to the noble and learned Lord, we reject his arguments in relation to reasonableness. As to how we formulate it, the right course is to see whether we can reach a solution which is acceptable to everyone and to come back with an amendment. In relation to the presumptions—which, although separate, it is right to deal with them in this clause; plainly, any vote on reasonableness would not determine any vote on presumptions—we believe, with the greatest respect to the noble Lord, Lord Thomas of Gresford, that we have the policy about right in that regard.

Lord Thomas of Gresford: My Lords, as regards the competing tests of how one introduces the objective element, the noble and learned Lord believes that his formulation,

    "A could reasonably be expected to doubt whether B consents",

is simple. I do not believe that it is. It invites the jury to enter into a hypothetical discussion as to whether A could reasonably be expected to doubt at the time of the alleged offence. It is far easier for a jury to grapple with the concept of what he believed at the time. Did he believe she consented? It is a very simple matter. Having come to the conclusion that he did, did he reasonably believe it? That is a simple way to deal with the issue.

As to the question of presumptions, we on these Benches do not believe in presumptions at all. But, if there are to be presumptions, surely they should shift only the evidential burden and not the persuasive burden to the defendant. In other words, if he should raise the issue in evidence given either by himself or in the course of the prosecution case, ultimately, in a serious matter such as a charge of rape, the burden of proving the case, of rebutting the presumption of innocence, of finding the defendant guilty, should always remain on the prosecution.

In the spirit of the Minister's reply I shall not press a Division at this stage. I hope that we will have further constructive discussions as to how to formulate the

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test, as he suggested. I thank the Minister and those advising him for the considerable assistance they have been to me in the course of the period that has elapsed between the Committee stage and today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 3:

    Page 1, line 6, leave out ", anus or mouth" and insert "or anus"

The noble Lord said: My Lords, I shall put this very simply. Oral penetration without consent is a serious sexual assault, but has never been hitherto defined or understood to be rape. The noble and learned Lord, Lord Lloyd of Berwick, has already, to some degree, spoken to this today. The noble and learned Lord, Lord Bingham of Cornhill, in a decision of the Appellate Committee of your Lordships' House concerned with the defence of honest and genuine belief as to consent—but it would have been said in any other context—said:

    "Nothing in this opinion should be taken to minimise the potential seriousness of the offence of indecent assault. While some instances of the offence may be relatively minor, others may be scarcely less serious than rape itself. This is reflected in the maximum penalty, now increased to 10 years', and the mandatory requirement that those convicted be subject to the notification requirements of the Sex Offenders Act 1997".

Your Lordships should know that, by chance, after I moved and withdrew this amendment in Committee, the noble and learned Lord, Lord Lane, who happened to be passing by in the Library, said to me, "I heard you talking about another offence or altering Clause 3 or something like that". I said, "Yes, my Lord, I did". He said, "That is a lot of nonsense. What is wrong with indecent assault? Indecent assault would cover this. It has this wide range.". It was then that I decided to look up the law and I found what the noble and learned Lord, Lord Bingham, had said.

The essence of the argument has already been put better than I could put it. Oral penetration is not rape. What is the justification for changing it and calling it rape? There is an alternative suggested for Clause 3. That is a matter for your Lordships to consider. But I particularly defer to the opinion expressed in Committee by the noble Baroness, Lady Mallalieu, who opposed the redefinition of rape in this way. She said, and I agree, that it degrades the seriousness of the label of rape and could confuse juries, who might well decline to convict of rape. There is nothing much more that I could usefully say to persuade your Lordships. I beg to move.

Lord Lloyd of Berwick: My Lords, I support this amendment. It is a very short point. All the arguments were advanced in Committee. In particular, we all remember the speech made by the noble Baroness, Lady Mallalieu. No one advanced any argument in Committee for including oral penetration for the first time in the offence of rape other than to say that it is a very serious offence. That it is a very serious offence we are all agreed, but it is not rape as ordinarily

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understood. For that reason, in Amendment No. 14A I have proposed to put this offence in Clause 3, which is where it belongs, under the heading of assault and with the same maximum sentence of life imprisonment.

When the Minister replied on the previous occasion, he did not completely shut the door. In that respect, he seemed to have an open mind. I invite him to consider again whether it would not be better to include what he wants—he will get all he wants—by inserting oral penetration in the offence under Clause 3 and not under Clause 1 where it does not belong.

5.15 p.m.

Baroness Mallalieu: My Lords, I shall add briefly to all that has been said in earlier debates on this topic. Whether victims of this type of sexual offence regard it as as serious and as damaging as rape I cannot say. That may be right. It is perhaps a subjective view as to whether it is as serious, more serious or less serious. It is clearly serious but, above all, it is a different offence. That is why I support the proposal made by the noble and learned Lord, Lord Lloyd of Berwick, that if it is regarded as inadequately dealt with at present under the provisions for indecent assault, there should be a separate offence with a separate penalty to cover it. It would be a mistake to extend the word rape, which has an ordinary meaning that everyone understands, to cover something that at present no one would understand actually to mean rape. I hope that the Minister will consider what has been said and perhaps adopt the approach of the noble and learned Lord.

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