Clause 77 - Conclusive presumptions about consent
Sexual Offences Bill [Lords]
3:45 pm
Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell and Peckham, Labour)
I thank the hon. Gentleman for giving me notice of this scenario before lunch. In introducing the amendment, he said that he had begun by feeling perfectly comfortable about paragraph (b), but had grown more and more anxious and now wants it to be struck out. I started off by feeling very uncomfortable about it, but I have felt more comfortable as I have looked into it.
As my hon. Friend the Minister of State said, we all worry about rebuttable presumptions because of the fear that they interfere with the principle that one is innocent until proved guilty. A rebuttable presumption may let the prison door clang shut, but at least the defendant will have had the chance to rebut it. We should be very concerned about conclusive presumptions because they cannot be rebutted. We know that rape and other sexual offences are taken more seriously by the courts than they used to be. Indeed, the starting point in Milberry for a rape with no aggravating features is five years imprisonment.
We are right to examine carefully the clauses that bring in conclusive presumptions. The framework of the Bill, which is admirable in all other respects, makes the conclusive presumption look worse than it is. The conclusive presumption does not require the prosecution to prove the same thing twice, which the prosecution would have to do if the conclusive presumption were not included.
I ask the hon. Gentleman carefully to examine the connectedness between ''intentionally'', ''induced'' and ''impersonating''. If all three things are shown, the woman in the witness box should not have to show that she did not consent because there would have been an intentional induction by impersonation. The measure is based on the old offence of obtaining sexual intercourse by fraud. If one considers the provision as such a separate offence, the absence of consent in fraud cases has been proved, and one feels comfortable about it. The structure of the Bill exists for very good
reasons, but it looks a bit odd at this point, which concerns people.
Let me remind the hon. Gentleman of the background. The statutory origin is 1956—the case of Barrow dates back even further, to 1868, but I shall not go into it. Section (1)(3) of the Sexual Offences Act 1956 provides that a man commits a rape if he induces a married woman to have sexual intercourse with him by impersonating her husband. That is more or less what we have in the Bill, in the form of a conclusive presumption.
In the Bill, we have extended the offence to cover relationships outside marriage, making it gender neutral, and extended it to cover all types of sexual activity. In the past it applied only to rape involving sexual intercourse, and not to indecent assault. We have modernised that old-fashioned, long-standing offence.
We have done that through clause 77(2)(b), which provides for the conclusive presumption that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act if it is proved. The prosecution has to prove that the defendant ''intentionally induced'' the complainant to consent to the relevant act
''by impersonating a person known personally to the complainant.''
In relation to your party of swingers, where people are all dressing up and pretending—