I beg to move amendment No. 41, in
clause 76, page 36, line 36, at end insert—
'( ) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.'.
I have already outlined the policy justifications for the rebuttal presumptions in the clause in my response to amendment No. 37, so I will not delay our progress by rehearsing those arguments. We aim to place in statute the circumstances in which sexual activity will not be condoned, and in relation to which the jury is entitled to presume that the complainant did not consent to the sexual activity and the defendant did not reasonably believe that the complainant consented to it. The judge will direct the jury to find the defendant guilty of a non-consensual offence where he does not raise sufficient evidence to rebut that presumption and if it is satisfied beyond reasonable doubt that the sex took place, that the circumstances existed and that the defendant knew that they existed.
We must be sure, before placing such an evidential burden on the defendant, that the circumstances in which the relevant act took place are such that they give rise to serious doubts about the ability of the complainant to exercise free choice. In short, the list of circumstances in the clause must include only those where it is reasonable to conclude that the complainant would not have consented and the defendant would not have had a reasonable belief in consent.
After a suggestion made by Lord Lucas during debates on the Bill in another place, we decided, by means of amendment No. 41, to add one more situation to the list of circumstances where a rebuttable presumption should arise. That is as follows: where a person engages in sexual activity with somebody knowing that he—the defendant—or a third person has administered a substance to the victim, or caused the victim to take a substance without consent, and, having regard to when the substance was taken, it was capable of enabling the victim to be overpowered at the time of the relevant act. The amendment complements the offence in clause 62, entitled ''Administering a substance with intent''. That covers a person who administers drugs or another substance to a victim without their consent with the intention of overpowering them, so that he or another person can engage in sexual activity involving that victim. The offence is complete once the substance is administered, before the intended sexual activity takes place.
That addition to the rebuttable presumptions list covers situations in which sexual activity has actually taken place in such circumstances. We are talking about what is referred to as drug rape. In cases of drug-assisted sexual activity, in which the victim has been drugged without their knowledge or consent, we believe that it is fair for the jury to presume that the complainant did not consent and that the defendant could not reasonably believe that she had consented.
The Government are aware that the incidence of drug-assisted rape is a cause for public concern; indeed, last night police officers argued for the inclusion of the provision. We are committed to taking whatever measures we can to strengthen the law and offer increased protection to potential victims. Adding drug rape to the list of rebuttable assumptions makes it clear in statute that such behaviour will not be tolerated. I hope that hon. Members agree and will see fit to accept the Government amendment.
Amendment No. 33 would add to the list of circumstances the case of the defendant or anyone else making any threat against the complainant or any other person either at the time of the alleged offence or immediately before it. I understand that the amendment is intended to cover any type of threat, such as threatened redundancy, burglary, or even future violence. I appreciate that the consultation document, ''Setting the Boundaries'', originally proposed fear of serious detriment as a circumstance that should give rise to a presumption about lack of consent. However, by the end of the consultation process, we decided to exclude fear of serious detriment from the list in clause 76(2) simply because the term is too imprecise and would create uncertainty in law. That is my basic problem with the amendment.
What constitutes a threat significant enough to lead to submission will vary between individuals enormously, according to their circumstances and the circumstances in which the threat is delivered. For example, the threat of loss of one's job could be
extremely serious for someone who is unskilled and dependent on a stable income to pay for urgent medical treatment or anything else that is critical, but not so serious for someone who could expect to find alternative employment readily.
The amendment might also cover threats that could take place at any time in future and which it might be within the complainant's power to prevent, either through their efforts alone, or—in the case of threatened violence—by going to the police. In addition, the amendment covers threats against any other person and potentially takes the scope of the offence outside the circumstances that could reasonably be considered to be of particular relevance to the victim. The amendment would cover a threat of any description made by anyone against another person. It is so wide that we simply cannot accept it into the list in subsection (2).
I certainly do not trivialise the concern that prompted the amendment, and I recognise that threats, whether they refer to causing harm or detriment to the victim or a member of their family, should always be taken seriously by the jury. They are important factors in determining whether the complainant consented, and whether the defendant believed in consent. However, as I have already made clear, we must ensure that the rebuttable presumptions in clause 76 are those on which we feel certain it is fair to conclude that consent was not present unless the defendant can raise sufficient evidence to the contrary.
To justify inclusion in the clause, any threat must be both realistic and immediate. It must involve the threat of immediate violence: for example, where an intruder holds a mother in one room and forces her to submit to intercourse by threatening that otherwise his partner will kill her child in another room.
Threats of an uncertain nature, made by the defendant or any other person, against the victim or anybody else at some unspecified time in the future, are too distant, too uncertain and unspecific to justify inclusion in the rebuttable presumptions list. I shall be very interested to hear Opposition Members' arguments in support of the amendment.
My hon. Friend has emphasised that Government amendment No. 41 is intended to cover drug rape. Does she agree that it would also cover a rape in which the victim is given drink without her consent, such as the case of someone slipping, say, vodka or another spirit into the bottom of the victim's glass when she is already well on the way to being drunk, to tip her over the edge? The amendment does not mention a prohibited substance; it just says any substance, so presumably it would cover alcohol as well.
It would cover any substance administered without the consent of the individual, so that would include alcohol.
The problem with a list, and whether it is to be added to, has been illustrated by the fact that the Bill left the House of Lords with a number of rebuttable presumptions set out in clause 76 and that a further one has since been added. That raises the question whether the list is intended to be exhaustive.
It is always dangerous to leave a list of circumstances when there is a possibility that something else could be added. Plainly the list, in the very good Bill that left their lordships' House, was not exhaustive because in the last hours or days the Government have thought of yet another item to add to it.
The Minister will have to accept that sometimes there are difficulties with lists. The chairman of the Criminal Bar Association said to the Home Affairs Committee that the list was legislative overkill; the question was whether such a list was necessary. He referred to what is essential in a rape case: a crystal-clear, easily understood summing-up to a jury rather than something that goes through a series of rebuttable presumptions. Most of the juries that I have been involved with would have difficulty in understanding the phrase ''a rebuttable presumption''. It would be very difficult properly to address a jury on such matters. Certainly Peter Rook, before the Home Affairs Committee, had his doubts about such a list.
I want to take the issue further. I am not sure how the provisions would operate. The hon. Gentleman has just referred to the need for juries to understand the concept of a rebuttable presumption. Would that be the position or would the judge not have to decide in the first place whether the presumption has been rebutted? In that case, the jury would never have to consider the matter because by the time it gets to them, the burden of proof would be in the ordinary direction.
I think, on reflection, that the hon. and learned Lady is right; it would be a judicial decision during the course of the trial and the jury might or might not be sent out when there is legal argument on such a point. On the basis of keeping everything in life simple, the hon. and learned Lady may agree with me that if we can keep matters simple, especially the process of summing up to juries, that would be a good thing.
The Minister dealt with my arguments about my amendment before I made them. That was kind of her. Not having heard them, she did so very well. Indeed, she probably dealt with my arguments better than she would have done had she heard them. There can be situations in which there is not just force, but threats of force. For example, let us consider serious economic threats between a divorced husband and wife, such as, ''I won't pay the school fees—unless'' or, ''I won't pay your mortgage or your rent unless you do what I want you to do.'' In many ways, such threats are worse than a punch in the teeth. Not only have they an impact on the person who is threatened with the economic problem, but they can have a nasty impact on the loved ones—the children—of the person who is being threatened.
My amendment is a further example of when such a presumption might exist, which would fit in reasonably neatly with the Bill. I drafted the amendment to illustrate that sometimes lists are not exhaustive. It was not for any other purpose. Indeed, when the list came to us from the other place, it could not have been complete given that the Government have found another presumption to add to the existing lot that are before us. I was uncertain until towards the end of
the debate whether alcohol was included in the Government's amendment because there was some discussion in the Home Affairs Committee about alcohol and getting a person drunk. The Minister has pointed out that such matters would apply to alcohol when laced drinks were involved, which is a more heinous action than simply giving someone a lot of drink.
I shall say no more about the matter. I thank the Minister for her response. We never wanted to press the amendment to a Division. I drafted it originally on the basis that lists are not always exhaustive. There may have been reasons to add to the list that emerged from the House of Lords. Indeed, I was absolutely right in that respect. It is just that the Government, when adding to the list, did not add what I said, but what they said. That proved that I was entirely right in principle, but slightly wrong in detail.
Order. The hon. and learned Lady is going down the path of a stand part debate, too. I am willing to allow that on the understanding that the Committee realises that it cannot have both debates.
I simply wish to ask the Minister why mental disability was not considered to be a circumstance and did not find its way its way into clause 76(2)(e). I wish to raise again the issue referred to by the hon. Member for Woking. I had not digested the matter in quite the way that he put it. We are talking about the omission of a threat of future action. One could go to the police about a threat of future violence and that might be a good reason for not including it in the conditions. One should go to the police about such a threat. A threat of future non-payment of the mortgage would not be a criminal offence, however, and realistically, there would not be anything that a woman could do about it in the sense of having recourse to the authorities. I wonder whether there is a gap in the Bill.
I apologise to the hon. Member for Woking. I just thought that it might be helpful—notwithstanding the possibility of his having many cogent comments to make that I had not thought of—to give him a steer on my attitude to his amendment. I hope that he does not think that I took his amendment lightly in making some remarks at the start.
I take the hon. Gentleman's point about the danger of lists. He knows that the original proposal for a limited statutory list of circumstances in which it would be conclusively presumed—that was the view at that stage—that the complainant did not consent was contained in ''Setting the Boundaries'' and opened to consultation. As a result of the strong views expressed during that consultation, it was felt that it was right to have a list that made a statement and sent a message to courts and society at large about the circumstances in which we as a society will not condone sexual activity, and about the bottom-line assumptions that I referred to today when we were debating the principles.
The hon. Gentleman outlined the danger that, once there is a list, there are questions about what should be on it and how extensive it should be. Having decided in principle that it was right to have some presumptions in legislation, we have taken the approach that the list should be very limited and, building on the results of the consultation, that we should have a list of rebuttable presumptions so that, even in those circumstances, if the defendant could adduce sufficient evidence to convince the judge that there was an issue about consent, there would be a possibility of his having that issue incorporated into the trial.
We know that putting presumptions of any kind into legislation is a serious matter. We have tried to strike a balance when using the presumptions to make that important statement—the consensus was that, on balance, that was a good thing to do—and when framing the conclusive and rebuttable presumptions. The rebuttable presumptions enable the defendant to make a case or try to make a case. We have tried to strike a balance between making the statement and the interests of complainants and defendants. Even though we have presumptions, the concern is obviously framing those provisions in a way that does not compromise the principle that somebody is innocent until proven guilty.
On the question asked by my hon. and learned Friend the Member for Redcar about mental inability, the main point about subsection (2)(e) is that the complainant has a physical disability as a result of which she would not have been able, at the time of the relevant act, to communicate to the defendant whether she consented. For other kinds of disability, the court must take into account as a matter of judgment whether that disability impeded communication; but where someone is physically unable to speak, we argue that unless the defendant can adduce evidence to the contrary, it will be presumed that that person could not have consented because of their literal inability to
communicate. Other disabilities are more open to interpretation and judgment.
As you are not allowing a clause stand part debate, Mr. Gale, I shall sum up briefly. We have thoroughly debated, now and previously, the principles and the detail of clause 76. I commend the clause as we propose to amend it to the Committee.
Amendment agreed to.
Clause 76, as amended, ordered to stand part of the Bill.