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Baroness Scotland of Asthal: My Lords, I understand precisely the concerns that the noble Baroness has expressed by way of her amendments. The amendments deal only with those situations where the child victim was under 13. In the vast majority of offences against children aged under 13, we would envisage the non-consensual offences in Clauses 6, 7, 8 or 9 being charged. It will be in only exceptional circumstances that the offences in Clauses 10 or 11 are charged. That will be principally where it is only during the trial that evidence emerges that the child is aged under 13.
Increasing the maximum penalty to life for Clauses 10 and 11, where the victim is under 13 and penetration takes place, is consistent with the offences in Clauses 6, 7 and 9. However, doing so would raise questions about consistency with other offences in the Bill, which could be charged in cases involving penetration of or by a child under 13, albeit that that is very unlikely. We would have to consider, for example, the familial child sex offences, abuse of a position of trust and all the mental disorder offences. We need to take a careful look at all the offences to which this issue applies and at the best way of ensuring consistency throughout the Bill. We should also consider whether doing that might detract from our policy of ensuring that the specific under-13 offences are charged every time that a sexual offence is committed against a child of that young age.
The purpose of Amendments Nos. 13, 14 and 25 is to make the offences in Clauses 12, 13 and 17 triable on indictment onlythe noble Baroness made that clearwhere the victim was a child under the age of 13. Clause 12 makes it an offence for an adult aged 18 or over, for sexual gratification, to engage in sexual activity in the presence of a child. Clause 13 makes it an offence for an adult aged 18 or over, for sexual gratification, to cause a child to watch a sexual act.
Clause 17 makes it an offence for an adult aged 18 or over to meet or travel to a meeting with a child having communicated with that child, possibly in a non-sexual way on two previous occasions, with the intention of committing a sexual offence against the child either then or subsequently.
Although these offences will involve some extremely serious behaviour, it is possible to envisage other cases where this method of trial might not be required. Sexual activity includes things such as kissing or sexual fondling between people who are close. Where, for example, an 18 year-old, for the purpose of sexual gratification, shows a photograph of two people kissing or sexually fondling to a 12 year-old, we would not necessarily want that case to be triable on indictment only. It is right to retain flexibility about the mode of trial for these cases.
One of the sad things that we have had to recognise is that there is a multiplicity of ways in which offences can be created. They cover the whole spectrum from the most minor to the most serious. We have to retain a little flexibility. Last evening we were talking about another concept of making the punishment fit the crime. We need a slightly lighter touch in relation to those matters.
In Clause 17 the adult must intend to commit a sexual offence against a child and that offence could be any of those in Part 1 of the Bill, including, for example, the offences in Clauses 12 and 13. So where a young adult meets or travels to meet a 12 year-old, having communicated with her in a non-sexual way twice previously, in order to show her photographs of two people sexually fondling, it is conceivable that the case could be suitably dealt with at a magistrates' court.
Although I fully accept that in the majority of cases those committing any sexual offence against a child under the age of 13 should be tried in the Crown Court, I am reluctant to remove the option of summary trial for those which do not involve physical contact with the victim. For the reasons that I have given I resist these amendments.
Lord Northbourne: My Lords, before the noble Baroness sits downalthough if she does not sit down I cannot speakgiven the extreme complexity of the crimes which we are creating today, it seems relevant
Baroness Scotland of Asthal: My Lords, that is very much what the Government are trying to do in both education and health in order to inform young people as to what is appropriate and proper behaviour; how to keep themselves safe, and what is the norm. A number of my noble friends on the Front Bench have spoken of all those issues. Education and healthcare are going to be very important indeed. I also hope that your Lordships' proceedings will help to elucidate these issues and will be used to some good effect.
Baroness Noakes: My Lords, I thank the Minister for her reply and in particular for saying that the amendments to Clauses 9 and 10 will be taken away and looked at. I was disappointed that on Clauses 12 and 13 the Minister did not address the point of consistency with the equivalent offence in relation to those with mental disorder in Clauses 34 and 35. I ask the noble Baroness to take that matter away as well and look at it again. It was not my purpose today to seek the opinion of the House, but to put again on the record these important issues. I hope that the Minister will include that in a thorough review of the offences involving under-13s.
Baroness Scotland of Asthal: My Lords, I am very happy to reassure the noble Baroness. I said that we would take the amendments away and consider the issue of consistency across the piece. I cannot guarantee that the result will be what she would wish, but we shall certainly think about it.
I understand that the Minister plans to undertake to translate that statement into guidance for the Crown Prosecution Service and others. While welcoming this commitment, unfortunately it will not totally meet the concerns about criminalising consenting sexual activity of under-16s expressed at all stages of the Bill.
On Report the Minister resisted an amendment to delete Clause 14, first, on the inaccurate grounds that this would prevent under-18 year-olds being prosecuted for the abuse of 13 to 15 year-olds. The objection was incorrect since the deletion of Clause 14 did not prevent a prosecution of under-18s for the straightforwardly abusive sexual assaults and sexual activity without consent offences under Clauses 1, 3, 5 and 7 of the Bill.
The only offences from which the Report stage amendment exempted under-18s were the relatively minor and obscure ones of inciting a child to engage in sexual activity, engaging in sexual activity in the presence of a child, and causing a child to watch a sexual act. However, in order to meet this objection this amendment now preserves these lesser offences for under-18s, but none the less ensures that consenting sexual activity between under-18s and 13 to 15 year-olds is not a criminal offence. In other words, there is the defence of consent.
The Minister may believe that guidance to the prosecution services will suffice, but unfortunately this is not the case. For a start, no government can fully control the police and prosecution services except by clear legislation which states what is, and what is not, a crime. While cases may be rare, there will undoubtedly be some unnecessary prosecution, perhaps as a result of parents laying complaints or police and CPS zeal for zero tolerance of child abuse.
More importantly, deciding not to prosecute may come far too late for children who have had their private lives investigated by strangers and have been accused of committing an offence. Their behaviour should not be a criminal offence in the first place. And how can it be right to create an offence which is not to be prosecuted? This seems a very bizarre form of government.
The Minister gave three other reasons at Report stage for refusing to decriminalise consensual sex between 13 to 15 year-olds and other young people. Those were, first, that although the act might appear
Taking those objections in turn, the first really does not hold water since, if there is any evidence that the teenager has been coerced or exploited into agreeing to sex then obviously she or he has not given a valid consent. But if there is no evidence of that, then plainly a prosecution should not occur. The second objection relates to the first, since it suggests that teenagersparticularly girlsare unable to give a valid refusal to sex and are having to rely on the criminal law to fend off boys' unwanted pressure. Surely the main point is that girls should be helped to feel strong about their sex lives and their bodies, and understand that they have a personal power whether to consent. A logical consequence of the Minister's argument is that 15 year-old girls will be unable to resist their boyfriends on their sixteenth birthday. In any event, the allegation that "many children" welcome consenting under-age sex being criminalised is often made, but rarely supported by quoted research. It appears to be one of those anecdotal "facts" that are often brandished in debate.
Some real research that can be quoted is, first, that the National Survey of Sexual Attitudes and Lifestyles in Britain shows that a quarter of women and nearly a third of men in the current 16 to 44 age group had sexual intercourse under the age of 16 and that the average age for first sexual activity was 14 for girls and 13 for boys. So we are talking about the unlikely idea that children welcome the criminalisation, not of behaviour they might be faced with in the abstract, but of behaviour most of them are currently engaged in. Given the extent of sexual activity under the age of 16, we cannot be surprised by research published in 1999 in the British Journal of Family Planning on teenage attitudes which shows that, in fact, the law has very little impact indeed on their sexual behaviour.
There are two problems with the Minister's third objection, that decriminalising consenting sex sends the wrong message to under-16s because we want to discourage them from all forms of sexual activity. First, the criminal law is a very poor tool for affecting consenting sexual behaviour. One should look at how unsuccessful the criminal law was at stopping homosexuality. Secondly, criminalising teenage sex sends other harmful messages to teenagers.
First, it tells them that the criminal law is stupid. How can we ask young people to respect the law and at the same time tell them that two 15 year-olds having a grope is a criminal offence for which there is no defence? Secondly, the message is sent that adolescent sexual exploration, a perfectly natural thing, is wrong, bad and a matter for state intervention. The psychological damage that may do to healthy sexual development is incalculable, but profoundly important to the individuals concerned. Finally, it may make under-16s furtive about seeking help for the consequences of their sexual activitiesin particular,
In short, this amendment seeks to help children by improving the Bill so that the law genuinely reflects their experiences and accurately states what is abusive, criminal and unacceptable behaviour. The Government hoped to modernise legislation in this area, but so far they are giving our teenagers a dangerously muddled and damaging law. I am most anxious to hear what the Minister has to say. I beg to move.
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