Clause 32 - Sexual activity with a person with a mental disorder or learning disability
Sexual Offences Bill [Lords]
4:30 pm
Ms Sandra Gidley (Romsey, Liberal Democrat)
These amendments have been tabled in a spirit of clarification. There are concerns among those who work with people with mental disorders or learning disabilities that the law uses different terminology for people who fall into those categories than it does in its discussion of rape in the early clauses. There is a strong feeling that there is not parity of esteem between the two phrases that are used. The rape clauses have the phrase ''B does not consent'', but these later clauses have,
''B is unable to refuse''.
Part of the reason for tabling the amendments is to probe the Government's thinking. Why is the term ''unable to refuse'' used, when we could have a similarity throughout the Bill by using the term ''unable to consent''? This is a fundamental point. There are people who think that the Bill as currently drafted is discriminatory to some extent. I urge the Minister to try to explain, because we do not want to have to return to this matter on Report.
Another problem is that the Bill is unclear about when someone is able or unable to consent. We have talked about the capacity to consent being pivotal, so that is a considerable concern. We need further clarification. The proposed definition of ''unable to refuse'' is quite loosely worded and may lead to inappropriate prosecutions. The other concern is that the current definition risks people with learning disabilities being seen as never able to consent to sexual activity. I am sure that we all acknowledge that people with learning disabilities are perfectly capable of entering into a sexual relationship. The emphasis of the wording is completely wrong.
It is clear that there is an attempt to protect people with learning disabilities, and that is welcome. The amendment is intended to probe whether we have chosen the best way to do that. The new offences of rape, assault and sexual assault all use the term ''consent'' and it would be helpful if the Government stated clearly why that term was not used in the context of people with learning disabilities.