Clause 32 - Sexual activity with a person with a mental disorder or learning disability
Sexual Offences Bill [Lords]
4:30 pm
Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell and Peckham, Labour)
As the hon. Lady reminds us, clauses 32 to 35 are designed to protect the most vulnerable of those with mental disorders—those who lack the capacity to consent to sexual activity. Although many people with a mental disorder are
fully able to consent to sexual activity, there are some, for example those with a profound learning disability, who are unable to give their informed consent. The law has hitherto failed to provide adequate redress for vulnerable people who have been targeted by predatory individuals. The clauses, together with clauses 36 to 46, are intended to remedy the problem by providing a strong legal framework to provide better protection. They are set out very clearly.
Amendments Nos. 189 to 196 seek to change the wording in the clauses from ''unable to refuse'' to ''unable to consent'' to sexual touching. Capacity to consent is defined in clauses 32 to 35 as ''unable to refuse'' rather than ''unable to consent'' because if the latter were used, it would refer to the definition of consent in clause 75 and that would be circular because that clause refers to the capacity to choose. The idea is that everything is set out in these clauses so that when people read them they know what they mean, rather than having to go to clause 75. Anybody reading the clauses would know what they were aiming for and would not have to dive for different clauses in the Bill to read about consenting.
In any event, the only change would be presentational, because there is nothing between the two phrases in terms of meaning. We have chosen a different phrase so that the clauses are self-contained and do not get tangled up with the definition in clause 75. For those reasons, I resist the amendments.