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Clause 3 - Assault by penetration

Part of Sexual Offences Bill [Lords] – in a Public Bill Committee at 3:15 pm on 9th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 3:15 pm, 9th September 2003

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?