Clause 77 - Conclusive presumptions about consent

Sexual Offences Bill [Lords] – in a Public Bill Committee at 3:45 pm on 9th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 3:45 pm, 9th September 2003

I beg to move amendment No. 38, in

clause 77, page 37, line 6, leave out paragraph (b).

I had the opportunity of discussing the amendment briefly with the Solicitor-General before we broke for lunch. When I first looked at clause 77 it struck me as being perfectly straightforward, correct and, if I may use the word, innocuous in its scope. The Solicitor-General confirmed to me before lunch that the conclusive presumptions about consent incorporated in the clause have a long history. They are not a recent invention, but have been around for some time, especially where the defendant

''intentionally deceived the complainant as to the nature or purpose of the relevant act'',

and where

''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''

My first reaction was that that was all completely in order. However, when I came to think about it last night, I began to wonder whether it was correct for us to have the conclusive presumption in subsection 2(b), that

''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''

In most cases, I would consider that it is correct to have that provision. If someone goes into a bedroom and pretends to be a woman's husband, thereby having sexual intercourse with her when she certainly had no intention of having sexual intercourse with that person, I can easily see that a conclusive presumption makes sense. However, as I explained before lunch, I wonder whether—it may be that I am becoming too fanciful—changes in social mores, quite apart from anything else, could easily bring about circumstances in which someone might believe that they had the consent of the complainant to deceive her as to the identity of the person with whom she was having sexual intercourse.

I gave the following example to the Solicitor-General. It is not something of which I approve, but a group of young people might decide to have a weekend in a country house for what I would describe as an orgy—I think that the Solicitor-General informally described such people as swingers. In the course of that event, it is agreed that there will be sexual intercourse between all the parties in the house. There is general consent by the parties to that

happening, which can of course be withdrawn. However, because the people are going around impersonating each other, a situation could occur—we have to take account of the possibility of misleading cases, as I long ago discovered—where a person misleads the complainant by impersonating another person in the belief that they had the permission of the complainant so to mislead them.

All I want to know, which was the question that I explained before lunch, is whether in those circumstances there would be, as I would think that there would, a conclusive presumption of guilt—which is what it amounts to—and of rape having taken place. That raises the question whether there should be a conclusive presumption or a rebuttable presumption. That is the issue.

I apologise if the point appears totally fanciful, but unless the Committee is prepared to examine the fanciful possibilities that exist in the modern world, we will probably not do this important legislation justice. I await what the Solicitor-General has to say with interest, if not with bated breath.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

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—

Photo of Roger Gale Roger Gale Conservative, North Thanet 4:00 pm, 9th September 2003

Order. It is certainly not my party of swingers.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Friends on both sides of the House would regard the oldest swinger in town as being something completely different.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

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).

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am most grateful to the Solicitor-General for her comments. She has persuaded me. As this discussion has taken place, it has become apparent to me that in the rather odd circumstances that I put forward as a theoretical possibility the defendant would be able to rely on the fact that consent had existed all along and had not been induced by impersonation, so he would not fall foul of the conclusive presumption. I have nothing against conclusive presumptions in circumstances of this type, or against their history. Perhaps I was looking at the Bill too late at night, but it suddenly struck me that the conclusive presumption might have draconian and unintended consequences. I am grateful to the Solicitor-General for reassuring me on that and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

Clause 78 ordered to stand part of the Bill.