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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.