Clause 77 - Conclusive presumptions about consent
Sexual Offences Bill [Lords]
4:00 pm
Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell and Peckham, Labour)
I apologise, Mr. Gale. In the example that the hon. Member for Beaconsfield gave, there is impersonation, but it is just what is happening—the impersonation is not taking place intentionally to induce. The prosecution would not be able to prove that in order to reach the next point. We do not need to show that there was no consent in addition to that because we have the conclusive presumption. We do not want the prosecution to have to double back over territory it has effectively gone past. It would not get past that territory in the case of the hon. Gentleman's example.
Amendment No. 38 would remove clause 77(2)(b) and reduce the protection of victims by offering them less protection than they have under existing law. We all remember two particular sets of circumstances. In one case, a music teacher deceived a pupil by saying that if she did this it would make her singing voice better. That was deception concerning the nature of the act of sexual intercourse. The second type of deception concerns who the person is. We want to keep that in the Bill, and I ask the hon. Gentleman not to press his amendment to a vote.
When the facts can be proved in such circumstances, we surely must agree that the
complainant did not give their consent to intercourse or to engaging in sexual activity with a person if they were tricked by impersonation because they were not making an informed choice. Nor can there be doubt that any claim by the defendant to believe in consent would be fatuous because the elements of the offence are the deception that they practised by virtue of impersonation, which the prosecution would be required to prove. It is hard to see why the complainant should thereafter be subjected to cross-examination, such as, ''This person was impersonating your husband, but even if you hadn't realised that this person was not your husband, you'd have wanted it with him anyway.'' That is the danger. One would end up with the allegation that the person was consenting to sex even though a person was impersonating their husband.
Given the rebuttable presumptions in clause 76, there is significant merit in sending a clear signal in statute about the circumstances in which sexual activity will not be tolerated and where the perpetrator can expect to be found guilty of a non-consensual offence. We have to remember the context when we are thinking of getting rid of existing protections. At the same time, we have to keep in mind the innocent person who might be found guilty under badly framed law. We do not want that to happen.
We also have to remember the context mentioned by my hon. and learned Friend the Member for Redcar, which is that of all serious offences, rape is least likely, after reporting, to get to the point of prosecution and, after it gets to prosecution, is least likely to reach the point of conviction. We have to be careful about doing anything that takes away legal protection from the victim. We all recognise that, despite increasing efforts by the police, the prosecution and the courts to enable people to bring their case to court where there is an allegation of rape, it is in this area of offences that the justice gap, as it is called, is widest and public and victims' confidence is most tenuous.
With that in mind, I asked police and prosecutors whether they had had any such cases. Like the hon. Member for Beaconsfield I have tried to work out the sort of scenario in which one could imagine it necessary to keep such a conclusive presumption in the Bill. Bearing in mind the concerns that the hon. Gentleman has raised, why do we not just chuck it out? If we did not think that we needed the provision, why bother arguing against the amendment?
As other hon. Members have done, I commend Operation Sapphire on the presentation that it made available to Committee members last night. Operation Sapphire says that it has had two recent cases involving this kind of act and that it wants to keep the provision. It sees more scenarios than we could ever dream up, and it does not want to lose what it thinks might be a useful piece of legislation.
Whenever there is a rebuttable presumption, we should test it incredibly carefully; whenever there is a conclusive presumption, we should presume against it
until it has been proved to be necessary. I have travelled the same thought-process journey as the hon. Gentleman and I am confident in saying to him and to the Committee that we should keep paragraph (b).