Clause 76 - Presumptions about the absence of
Sexual Offences Bill [Lords]
3:15 pm
Ms Beverley Hughes (Minister of State (Citizenship and Immigration), Home Office; Stretford and Urmston, Labour)
I have already outlined the policy justifications for the rebuttal presumptions in the clause in my response to amendment No. 37, so I will not delay our progress by rehearsing those arguments. We aim to place in statute the circumstances in which sexual activity will not be condoned, and in relation to which the jury is entitled to presume that the complainant did not consent to the sexual activity and the defendant did not reasonably believe that the complainant consented to it. The judge will direct the jury to find the defendant guilty of a non-consensual offence where he does not raise sufficient evidence to rebut that presumption and if it is satisfied beyond reasonable doubt that the sex took place, that the circumstances existed and that the defendant knew that they existed.
We must be sure, before placing such an evidential burden on the defendant, that the circumstances in which the relevant act took place are such that they give rise to serious doubts about the ability of the complainant to exercise free choice. In short, the list of circumstances in the clause must include only those where it is reasonable to conclude that the complainant would not have consented and the defendant would not have had a reasonable belief in consent.
After a suggestion made by Lord Lucas during debates on the Bill in another place, we decided, by means of amendment No. 41, to add one more situation to the list of circumstances where a rebuttable presumption should arise. That is as follows: where a person engages in sexual activity with somebody knowing that he—the defendant—or a third person has administered a substance to the victim, or caused the victim to take a substance without consent, and, having regard to when the substance was taken, it was capable of enabling the victim to be overpowered at the time of the relevant act. The amendment complements the offence in clause 62, entitled ''Administering a substance with intent''. That covers a person who administers drugs or another substance to a victim without their consent with the intention of overpowering them, so that he or another person can engage in sexual activity involving that victim. The offence is complete once the substance is administered, before the intended sexual activity takes place.
That addition to the rebuttable presumptions list covers situations in which sexual activity has actually taken place in such circumstances. We are talking about what is referred to as drug rape. In cases of drug-assisted sexual activity, in which the victim has been drugged without their knowledge or consent, we believe that it is fair for the jury to presume that the complainant did not consent and that the defendant could not reasonably believe that she had consented.
The Government are aware that the incidence of drug-assisted rape is a cause for public concern; indeed, last night police officers argued for the inclusion of the provision. We are committed to taking whatever measures we can to strengthen the law and offer increased protection to potential victims. Adding drug rape to the list of rebuttable assumptions makes it clear in statute that such behaviour will not be tolerated. I hope that hon. Members agree and will see fit to accept the Government amendment.
Amendment No. 33 would add to the list of circumstances the case of the defendant or anyone else making any threat against the complainant or any other person either at the time of the alleged offence or immediately before it. I understand that the amendment is intended to cover any type of threat, such as threatened redundancy, burglary, or even future violence. I appreciate that the consultation document, ''Setting the Boundaries'', originally proposed fear of serious detriment as a circumstance that should give rise to a presumption about lack of consent. However, by the end of the consultation process, we decided to exclude fear of serious detriment from the list in clause 76(2) simply because the term is too imprecise and would create uncertainty in law. That is my basic problem with the amendment.
What constitutes a threat significant enough to lead to submission will vary between individuals enormously, according to their circumstances and the circumstances in which the threat is delivered. For example, the threat of loss of one's job could be
extremely serious for someone who is unskilled and dependent on a stable income to pay for urgent medical treatment or anything else that is critical, but not so serious for someone who could expect to find alternative employment readily.
The amendment might also cover threats that could take place at any time in future and which it might be within the complainant's power to prevent, either through their efforts alone, or—in the case of threatened violence—by going to the police. In addition, the amendment covers threats against any other person and potentially takes the scope of the offence outside the circumstances that could reasonably be considered to be of particular relevance to the victim. The amendment would cover a threat of any description made by anyone against another person. It is so wide that we simply cannot accept it into the list in subsection (2).
I certainly do not trivialise the concern that prompted the amendment, and I recognise that threats, whether they refer to causing harm or detriment to the victim or a member of their family, should always be taken seriously by the jury. They are important factors in determining whether the complainant consented, and whether the defendant believed in consent. However, as I have already made clear, we must ensure that the rebuttable presumptions in clause 76 are those on which we feel certain it is fair to conclude that consent was not present unless the defendant can raise sufficient evidence to the contrary.
To justify inclusion in the clause, any threat must be both realistic and immediate. It must involve the threat of immediate violence: for example, where an intruder holds a mother in one room and forces her to submit to intercourse by threatening that otherwise his partner will kill her child in another room.
Threats of an uncertain nature, made by the defendant or any other person, against the victim or anybody else at some unspecified time in the future, are too distant, too uncertain and unspecific to justify inclusion in the rebuttable presumptions list. I shall be very interested to hear Opposition Members' arguments in support of the amendment.