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Clause 3 - Assault by penetration

Sexual Offences Bill [Lords] – in a Public Bill Committee at 3:00 pm on 9th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 3:00 pm, 9th September 2003

I beg to move amendment No. 39, in

clause 3, page 2, line 6, leave out paragraph (b).

Clause 3 raises a potential difficulty, which is why I drafted amendment No. 39 for the consideration of the Committee. The clause covers assault by penetration and is linked, in terms of gravity, to clause 4, which relates to sexual assault, which is, effectively, touching. Clause 3, however, is very specific. It relates to someone intentionally penetrating

''the vagina or anus of another person . . . with a part of his body or anything else''—

an object. The clause goes on to state that an offence is committed if ''the penetration is sexual'', B ''does not consent'' to it and

''A does not reasonably believe that B consents.''

It goes on to deal with reasonableness, belief and the presumptions.

My concern is that, when one is dealing with a sexual assault by touching, it is clearly highly relevant whether there is a sexual motive for the action. It may be innocent touching, as opposed to, to use the words

of the hon. and learned Member for Redcar, a grope in a public place. However, I was a little puzzled as to why, when dealing with assault by penetration, it should be necessary for there to be a sexual element to the offence at all. After all, if someone carries out such an assault without the consent of the person concerned, that is a serious matter. It may constitute in some circumstances an offence of actual bodily harm or grievous bodily harm, but there is clearly an intention in the Bill to highlight and to deal with it as a specific offence. Why is there the need to say, in such cases, that the penetration has to be sexual?

Under clause 79, the definitions clause, we will be asking a jury to decide whether a reasonable person would consider whether the penetration was sexual. Under that clause,

''a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.''

I understand exactly why that question has to be asked for clause 4, but why does it have to be asked at all for clause 3? Surely the real nub of clause 3 is that the activity takes place without, to use those old phrases, lawful authority or a reasonable excuse. If that is the case, why are we including the requirement that penetration should be considered to be sexual?

I appreciate that in the vast majority of cases that may appear to be an exercise in semantics, but seeing as we wish to show our absolute abhorrence at such activities taking place without consent, outside of medical necessity or, possibly, a lawful search—I have read the notes and appreciate the points that need to be covered—why are we requiring the jury even to consider the question at all? If we said, ''Members of the jury, you might conclude that the reasons behind this extraordinary assault had no sexual element to them at all but were mere violence'', as I read it, that jury could be faced with the bizarre circumstance of having to acquit for the offence. I therefore ask whether that definition should be in subsection (1)(b).

Under clause stand part we shall come to another point for which I have not tabled an amendment, but to which I shall return. The matter that I have raised seems to be small, but I am seeking to improve the legislation, not to put a spanner in the works in some way. Really, the motive, and motivation, of someone who thrusts an object into another person's anus or vagina seems to be entirely irrelevant if that is an unlawful act because there is not a proper reason—an excuse or a lawful authority—for doing it. In those circumstances, why is there the necessity of the jury being satisfied of a sexual motive? Of all the imponderables in life, one of the greatest is reading someone's mind or actions. That is not necessarily easy. I think that we are here giving the jury a hurdle that, in this context, is completely unnecessary.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I have some sympathy with the arguments that the hon. Gentleman has advanced. I asked many of the same questions when considering the reasons why the clause is worded as it is. The answer is partly technical. This Bill deals with sexual offences and we must ensure that the offences that we are discussing and legislating for come appropriately within the Bill's scope. That point is important,

although it is technical and does not wholly address the other points that the hon. Gentleman made, and with which I shall try to deal.

The amendment—I understand the supporting arguments—would bring all forms of non-consensual penetration within the scope of the offence. It is very difficult to imagine an offence where somebody's anus or vagina is penetrated with an object not being sexual. In discussions with officials, I was reassured that the guidance issued to the Crown Prosecution Service and the way in which the Crown Prosecution Service would apply the charges will ensure that all offences in which there is any question of sexual intent will come within the scope of this legislation.

We must go to the bounds of what is possible in our discussions, and it is conceivable that there might be a very unusual incident in which, for example, a doctor who had to examine an unconscious person digitally as a matter of urgency would become liable for the offence if the legislation were drafted in the way in which the hon. Gentleman has suggested.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I accept that my amendment might have been better if, having put in a provision to delete the paragraph, I had put in something else. That is why I raised ''lawful authority'' or ''reasonable excuse''. When we consider similar wording in subsequent clauses, we will see that I have done so, and the Minister can respond to that. I accept that it would be necessary to put in something else. The sexual element troubles me. I wonder whether it is necessary to require a jury to pose itself that question.

Beverley Hughes rose—

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

The sexual element is important in determining the gravity of the offence within the range of the Bill and the penalty that will be introduced. I would like briefly to suggest a case study. If there were a question whether a young person aged between 10 and 16 had any idea that what they were doing was a sexual activity, it would be a significant element in relation to the victim. It may be an assault—it may be a grave assault—but it should or could be looked at differently. So, the sexual nature is important.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I agree with my hon. Friend but the argument being advanced is not that we should not consider the sexual nature. If I understand the points made by Opposition Members, their argument arises from a concern that it might be possible to propose a defence that a particular action of that kind was not sexual, did not therefore come within the scope of the Bill, and may become liable to a charge under other, non-sexual, legislation, which might attract a lower penalty.

On that point, I want to reassure my hon. Friend. Where a defendant penetrates a vagina or anus with a bottle, for example, it is very likely the court will find that to have been a sexual act—even in the unlikely event that the defence might be based on the fact that the defendant intended only to cause serious harm and that they had no sexual purpose. That is a judgment that the court will make.

The concern of the hon. Member for Beaconsfield (Mr. Grieve) may be that, in the Bill, the offence of assault by penetration carries a maximum life penalty, whereas some other offences of assault—for instance, assault occasioning actual bodily harm—carry maximum penalties of five years. The maximum penalty for the offence of common assault is six months imprisonment. I understand the concern that, if a situation arose where the extent to which a particular incident was not sexual was successfully argued, it would attract one of the charges with a much lower penalty. I remind the hon. Gentleman that the offence of grievous bodily harm with intent, which could be charged in relation to a serious non-sexual penetrative offence—if such a set of circumstances existed—is also life imprisonment. There is a maximum penalty for a non-sexual offence that might involve penetration comparable to that for the offence laid out in the Bill.

Photo of Chris Bryant Chris Bryant Labour, Rhondda 3:15 pm, 9th September 2003

Might there not also be circumstances in which a doctor who regularly carries out digital examinations gained consent to a digital anal or vaginal examination from the patient, who had not consented to an examination where the doctor was clearly sexually excited? In such circumstances, the person would feel themselves to have been more profoundly abused, and the law should take that into consideration.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Certainly—exactly so. I have no difficulty in agreeing with my hon. Friend. Based on the circumstances of the case, that person would be charged under the legislation.

Any penetrative offences that were not judged to be sexual—and I qualify that statement by saying that it is difficult to conceive what they might be, although the example of my hon. Friend the Member for Wirral, West (Stephen Hesford) in relation to young people might be an example in point—are offences against the person and in such cases there is provision for charges that carry the same maximum penalty of life imprisonment as those in the Bill.

I understand the concern that is the mainspring of the amendment of the hon. Member for Beaconsfield, but between the Bill and legislation that already exists there is provision in the case of penetrative offences that are sexual—and most will be—or rare, non-sexual offences for charges to be laid that attract the same penalty. There is no need for the amendment and I ask him to withdraw it.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I reassure the Minister that I do not intend to press the amendment to the vote. I raised the matter because I think that it is serious. Although the Minister has answered my queries in part, I confess that I remain slightly unpersuaded on the issue. There were some interesting contributions, and the hon. Member for Wirral, West raised an interesting point.

It is the case that there may be circumstances where someone has an apparent lawful reason to carry out penetration, but is doing it for a wholly unnecessary purpose to get sexual gratification. Of course it is

possible for someone to get sexual gratification from their professional activities while fulfilling a lawful purpose. That is something against which no legislation is going to be possible.

However, the problem could be dealt with by removing the word ''sexual'' and putting in the words ''lawful authority'' or ''reasonable excuse''. There is a number of words in the jargon of legislation that I can think of which make it quite clear that carrying out an act such as an intimate strip search would be permissible, if one had lawful authority. A reasonable excuse may be, for instance, if one were dealing with an unconscious patient and one considered that an examination had to be carried out forthwith.

It is quite possible to draft something without including the sexual element. My feeling is that the word has crept in partly because it is the Sexual Offences Bill, and partly because it is a generic description that applies to a number of different offences—in some cases absolutely properly. In the example I gave earlier in relation to clause 4, it is vital that the sexual element is a factor that should be determined by the jury.

I question the necessity of the term in clause 3. It seems that we are seeking to highlight in this offence Parliament's abhorrence and prohibition of the penetration of a person's anus or vagina without consent with an object or part of a body. The question of motive from the victim's point of view is unlikely to make very much difference, although I accept that there may be factors that can be taken into account in sentencing.

I do not wish to turn a serious topic into something comic, but I remember watching the ''Carry On'' films as a boy and I seem to remember that ''Carry On Nurse'' ends with a penetration by a daffodil—that would be unlikely to merit life imprisonment, even though it would clearly be an offence under clause 3. The courts would have to make a judgment. The reason why we have the penalty of life imprisonment is that we regard penetration as a potentially serious matter, not that such a case is of necessity going to attract life imprisonment or, for that matter, many years in prison. It will all depend on the facts.

Is it necessary for the jury to be satisfied about a sexual element? If it is, we will find that every barrister and prosecuting counsel in slightly odd cases will put down two counts on the indictment: one will be assault by penetration, resulting in life imprisonment; and the other, unless there are serious injuries, will be ABH. Why make a rod with which to beat our own back, when we are trying to spell out clearly that something is not only prohibited but regarded as a potentially serious offence?

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am, as a Welsh MP, rather hesitant to stand up on the issue of daffodils.

The hon. Gentleman said that people might draw sexual gratification from any line of work, and that we cannot pass a law to prevent that. However, those people who for their work regularly have to insert things into other people's bodies should be presumed

to have a different set of criteria guaranteeing their probity.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I entirely agree. The point that I was trying to make is that something might be lawfully done, but in that particular context still give somebody some sexual gratification. We can only condemn those who do things that are unnecessary, wrong or unlawful and, as I said earlier, without lawful authority or reasonable excuse. I want to prevent a jury from having to answer a question that might, in the context of what they are being asked to deal with, be unnecessary.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I realise that the hon. Gentleman is trying to bring his remarks to an end, so I shall briefly intercede. I am perfectly happy to go back and to make absolutely sure with officials that we need do nothing further on the clause. I shall bring any information back to the Committee.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am most grateful to the Minister. That is as much as I could possibly have asked for. It may well turn out that there are good, cogent reasons why we should stick to this formula. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

There was one other matter that was raised by Liberty but on which I did not draft an amendment. The organisation made the valid point that there appears to be a potential duplication between assault by penetration and rape. As worded, the fact that assault by penetration does not specifically exclude penetration with the penis might mean that it could be argued that a person who commits rape is also committing assault by penetration. Is that what the Government intended? If the Government wanted to spell it out clearly, it would be necessary to reword clause 3(1), which says that person A commits an offence if

''he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else''.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Where it is clear that the penis is the object with which somebody has been penetrated, a person will always be charged with rape. The two clauses were drafted as they were—clause 3 in particular—because there may be circumstances where it is not clear with what the victim was penetrated. If somebody is blindfolded, for example, there may be a reasonable assumption or a view about what happened, but it will not be clear. It is therefore important to retain the wording of the clauses to allow for that eventuality.

Hon. Members will know that non-consensual penetration of the vagina or anus with anything other than the penis is currently charged as indecent assault, which carries a maximum penalty of 10 years imprisonment. From the important, although fairly brief, discussion of the clause it is clear that all Committee members regard forceful penetration with another body part or object as extremely serious offending behaviour, which can inflict as much, if not more, pain and physical damage on a victim as penile

penetration and is likely to result in similar psychological trauma.

Clearly, the law must recognise that penetrative offences are serious. That is why we created the new offence of sexual assault by penetration. We believe that the maximum penalty for that offence should be life imprisonment—the same as for rape. The new offence will provide better redress for those who are subjected to such appalling offending behaviour. I hope that it will enable the correct targeting of more offending behaviour against children and adults and that it will be underpinned by a maximum sentence that properly reflects the gravity of the offence that is committed.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clauses 4 and 5 ordered to stand part of the Bill.