Clause 77 - Conclusive presumptions about consent
Sexual Offences Bill [Lords]
3:45 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
I beg to move amendment No. 38, in
clause 77, page 37, line 6, leave out paragraph (b).
I had the opportunity of discussing the amendment briefly with the Solicitor-General before we broke for lunch. When I first looked at clause 77 it struck me as being perfectly straightforward, correct and, if I may use the word, innocuous in its scope. The Solicitor-General confirmed to me before lunch that the conclusive presumptions about consent incorporated in the clause have a long history. They are not a recent invention, but have been around for some time, especially where the defendant
''intentionally deceived the complainant as to the nature or purpose of the relevant act'',
and where
''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''
My first reaction was that that was all completely in order. However, when I came to think about it last night, I began to wonder whether it was correct for us to have the conclusive presumption in subsection 2(b), that
''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''
In most cases, I would consider that it is correct to have that provision. If someone goes into a bedroom and pretends to be a woman's husband, thereby having sexual intercourse with her when she certainly had no intention of having sexual intercourse with that person, I can easily see that a conclusive presumption makes sense. However, as I explained before lunch, I wonder whether—it may be that I am becoming too fanciful—changes in social mores, quite apart from anything else, could easily bring about circumstances in which someone might believe that they had the consent of the complainant to deceive her as to the identity of the person with whom she was having sexual intercourse.
I gave the following example to the Solicitor-General. It is not something of which I approve, but a group of young people might decide to have a weekend in a country house for what I would describe as an orgy—I think that the Solicitor-General informally described such people as swingers. In the course of that event, it is agreed that there will be sexual intercourse between all the parties in the house. There is general consent by the parties to that
happening, which can of course be withdrawn. However, because the people are going around impersonating each other, a situation could occur—we have to take account of the possibility of misleading cases, as I long ago discovered—where a person misleads the complainant by impersonating another person in the belief that they had the permission of the complainant so to mislead them.
All I want to know, which was the question that I explained before lunch, is whether in those circumstances there would be, as I would think that there would, a conclusive presumption of guilt—which is what it amounts to—and of rape having taken place. That raises the question whether there should be a conclusive presumption or a rebuttable presumption. That is the issue.
I apologise if the point appears totally fanciful, but unless the Committee is prepared to examine the fanciful possibilities that exist in the modern world, we will probably not do this important legislation justice. I await what the Solicitor-General has to say with interest, if not with bated breath.