Clause 6 - Rape of a child under 13

Sexual Offences Bill [Lords] – in a Public Bill Committee at 9:10 am on 11th September 2003.

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking 9:10 am, 11th September 2003

I beg to move amendment No. 133, in

clause 6, page 3, line 18, after 'if', insert

'as part of an assault'.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 134, in

clause 7, page 3, line 25, after 'if', insert

'as part of an assault'.

Amendment No. 135, in

clause 8, page 3, line 33, after 'if', insert

'as part of an assault'.

Amendment No. 136, in

clause 9, page 4, line 2, after 'if', insert

'as part of an assault'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I welcome the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), to the Committee. I may be wrong, but this Standing Committee may be the first that he has attended as a Minister. We are delighted to see him in his place on the Front Bench and congratulate him. Our dealings with him thus far have been most cordial, and we do not doubt that they will continue in exactly the same vein.

Clauses 6 to 9 have a great deal in common. They all relate to children under 13 and a common thread runs through each clause. I hope that I—and my hon. Friend the Member for Beaconsfield (Mr. Grieve), if he makes the same error, which I do not think that he will—will be forgiven if I occasionally make a comment that could apply to more than one clause in the group. Once made, it will not be made again, so time will be saved.

The general proposition that is well understood by all members of the Committee is that aggressive, non-consensual, predatory sexual behaviour on the part of one person towards another is utterly to be deplored. Furthermore, our attitude of horror towards that proposition escalates as the gap in age between the parties involved widens. It is our duty as legislators to protect people, particularly from predatory sexual behaviour. The Bill is designed to modernise the law on sexual behaviour and assault and, by and large, it does that well. However, the other side of the coin is that all members of the Committee find it difficult to criminalise consensual behaviour of a sexual nature between young people who are broadly of the same

age. We know that young people experiment with sexual behaviour from a fairly early age.

Such views were well reflected in the debate in the other place. How then do we match those two different points of view in legislation? Clauses 6 to 9, but particularly clauses 6 to 8, will create very serious offences relating to people who perform sexual acts with children under 13. That makes sense to all of us when the defendant is older than the victim, but does it make sense when the defendant is the same age or much the same age as the victim? Perhaps not.

Let me give some examples. If a boy and girl aged 12 indulge in French kissing to which each consents, they will be committing an offence under clause 8. If a boy fondles a girl sexually over her clothes, or vice versa, both will be committing a sexual offence under clause 8, and that offence will be punishable—yes, punishable—by 14 years imprisonment. I am not being flippant, but if two 12-and-a-half-year-old boys relieve the boredom of their first year at boarding school by indulging in mutual masturbation—which has happened—a serious offence will have taken place. If, at the suggestion of a girl aged 12, a boy of the same age puts his finger into her vagina, the boy will be committing an offence punishable under clause 7 by imprisonment for life. We think that that is a preposterous proposition, for the reasons I have outlined.

The anomaly already exists in principle, because much of the behaviour in question is criminal under existing law. However, the position seems to be worsening, because under the Bill the maximum penalties are much increased. Under current law, some of the behaviour we are talking about would constitute indecent assault and/or indecency with children, which is currently punishable with up to 10 years imprisonment, but the Bill would make such offences punishable with 14 years imprisonment in some cases and life imprisonment in others.

What truly shocks us about sex with children under 13 is if there is a large age gap. Of course, we want to make it seriously punishable for an adult to perform sexual acts with a child under 13; there is no doubt of that. We also feel uneasy and unhappy about, for example, a child of 14 performing sex acts with a child of eight or 10, but we feel far less aghast at—indeed, we understand—the prospect of consensual sexual acts between children who are 11 or 12. I do not think that there is any appetite in society for criminalising that sort of behaviour.

What is the proper course of action? My hon. Friend the Member for Beaconsfield will speak at some length on the various approaches that can be taken. There is the argument—I am not sure that it is right—that there should not be an age gap between the parties of more than, say, two years. If such a provision were brought into force, it would create an exemption from criminal liability in respect of consensual acts only. The child of 12 who forces attentions on an unwilling victim of the same age would still be committing a variety of offences.

Amendment No. 133 to clause 6 would insert:

''as part of an assault''.

Amendments Nos. 134, 135 and 136 are identical to it, but apply to clauses 7, 8 and 9; that is why I bring them within the scope of this debate. Amendment No. 133 is a probing amendment. The Law Society suggested it to me, and its purpose is to clarify the definition of non-consensual offences against children under 13.

Clause 6, like clauses 7 to 9, covers non-consensual sexual offences against under-13s, so the issue of consent is not relevant there. We understand the plain and laudable purpose of clauses 6 to 9, which is to protect children from suffering abuse. Any touching that is not consented to constitutes an assault. However, as assault is not part of the offence under the Bill as it stands, the provisions will also criminalise consensual child-on-child conduct in which both parties are under 13. Although child-on-child activity can be abusive and damaging, is it the Government's intention to have the threat of criminalisation hanging over the heads of those engaged in consensual activity?

The Law Society and Opposition Members understand that the Crown Prosecution Service intends to issue guidelines for prosecution. I feel distinctly uneasy about passing a draconian law that punishes offences under clauses 6 and 7 with imprisonment for life, and with imprisonment for 14 years under clause 8, and simply relying on the fact that the Government say, ''Don't worry about the law. We shall make sure that it is never enforced.'' It is not helpful to have legislation that constantly requires modification by guidelines.

In this instance, there is something to be said for the proposition that it is advantageous to spell out the requirement of an assault element to the offence. Of course, things would be clearer if such an element were introduced into the clause, because if the conduct that is disapproved of resulted from an assault it would become a serious offence.

I conclude with a few general remarks on the age of consent for heterosexual sex. In this country it is 16. Committee members will be interested to know—in fact, they probably already know—that the rules in European Union countries vary. For example, in Austria the common age of consent for males and females is 14; in Denmark, Finland and France it is 15; in Italy, on occasions, it can be 14; in Spain it is as low as 12, and in Sweden as low as 15. There are different approaches to the matter.

I have opened the debate with some comments of general principle on clauses 6, 7 and 8 and stressed that all of us are completely against predatory sexual behaviour. However, it is difficult for the Opposition to accept that draconian sentences for consensual sexual behaviour between youngsters should be on the statute book. More will be said about that as the debate unfolds.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

The hon. Gentleman speaks very well and with good purpose. There is much sense in what he says. However, is he happy with the introduction of the word ''assault''? Might not that leave room for the appalling kinds of

sex offenders—people who groom or entice a child into sexual abuse—about which some Committee members heard yesterday evening in our discussion with Scotland Yard?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman makes a good point. I am not entirely happy with the wording. One of the difficulties with the Bill, which was referred to in the House of Lords debates and by the Home Secretary, is that although we know what we want to achieve—I do not suppose that there is a scintilla of difference between Committee members about that—we are not certain how to achieve it. Other relevant amendments will be tabled and dealt with later. One of mine says that the activity in question must have created harassment, alarm or distress to the complainant. The hon. Gentleman says, quite rightly, that there are difficulties. I do not suggest that my amendment is a perfect solution.

You have been kind enough to let me range a little on the issue, Mr. Griffiths. We shall return to this subject as the debate unfolds. This is one of the more important debates that we have had, or will have, on the subject. Different points will crop up under clauses 7, 8 and 9, and which there will be a certain amount of interchange, and I hope that many Committee members will voice their views on this vexed topic. That may help us reach a conclusion.

I have always understood that the Government acknowledge the issue and will do their best to listen during the course of the Committee stage to the propositions that are advanced. They might, if not at this stage, then on Report, seek another way of improving the Bill.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I understand the motivation for these amendments, but they fail to achieve the stated purpose. We must not lose sight of the fact that clauses 6 to 9 deal with children under the age of 13. I have particular concerns about clause 8, which deals with sexual touching, and clause 9, which deals with inciting a child to engage in sexual activity.

To return to clauses 6 and 7, I start from the premise that it is difficult to accept that the acts they deal with involving such a young child can ever be regarded as anything but assault. The Family Planning Association suggested amendments that appear to provide a defence of consent for a child under 13. I have problems with that because I am not sure that a 12-year-old is in any position to consent to sexual intercourse—we are talking about full sexual intercourse now, not consensual touching, or any sort of touching. The Family Planning Association must have meant well when it proposed these amendments—which I notice no hon. Member has tabled—because its job is to deal with the practical side of providing advice on contraception and sexual health to young people. However, I was slightly concerned: if the association regularly comes across the problem of 12-year-olds having sex, that is something that unfortunately we have to face, but such activities should not be condoned in any way.

The amendments do not help with the consensual aspects. We should consider a different approach. In fact, the amendments provide a loophole. I might not

have thought that prior to yesterday's briefing from the Metropolitan police. Clause 6 deals with the penetration with a penis of

''the vagina, anus or mouth of another person''.

There are no circumstances in which we would condone 12-year-olds engaging in that sort of sexual activity, or with the activities dealt with in clause 7. In yesterday's briefing by the Metropolitan police, I was struck by the fact that the officer opened by talking about children who are brought into abusive situations not by deceit, but because they think that what is happening in their family is normal. All children think that what happens in their family is normal. To offer a rather silly example, a friend of my daughter came to tea once and as she left she asked, ''Why don't your parents shout at each other all the time?'' She thought that it was unusual that we were not arguing. It is clear that a child might be unaware that she is being abused, because she does not know any different: for example, she might think that dad is being nice to her. She might not have any other framework within which to put what is going on. The amendments would make it impossible to bring charges in these sorts of cases.

Clause 8 raises a slightly different issue, because we are coming closer to criminalising what might happen naturally between young people, but again the amendments would not help. Let me describe a case of which I became aware some 30 years ago, when I was a teenager, before I had any idea that things like this happened. The victim was a four-year-old girl. Nobody knew that there was a problem until she went into her parents' bedroom one day when her father was getting changed. I have to tell it as it apparently happened. The little girl looked at her father and said, ''Why is your willy different to uncle's?'' One can imagine the cold shock and horror that must have passed through her parents. They did not panic, but gently questioned her, and it immediately became apparent that, unlike her father's, the uncle's penis had been in a state of considerable arousal when she saw it.

The long and short of it is that the problem was dealt with and the uncle lost his job. He was not a real uncle, but a ''friend'' uncle. The little girl looked forward to the times that he came to babysit, and there had been no awareness of any problem—the child had never said that she did not want him to come. She had been encouraged to touch the uncle in that way, yet it was not part of an assault. The amendments would not deal with that sort of situation.

I hope that I have made the case for the amendments being withdrawn. I appreciate the spirit in which they were tabled—we are all struggling to find a way around the problem. I am becoming increasingly concerned that the issue is dominating much of the debate. There are a lot of other good things in the Bill, and if we can come to some sensible solution or compromise, I am sure that all Committee members will find that acceptable.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 9:30 am, 11th September 2003

Mindful of what the hon. Lady has said and of the intervention of the hon. Member for Lancaster and Wyre (Mr. Dawson), it seems to me that the amendments

suggested by the Law Society present problems, as my hon. Friend the Member for Woking (Mr. Malins) acknowledged when opening the debate.

The first problem that the amendments seem to present is that they arguably allow a loophole for paedophile activity if it could be shown that an act was an act of seduction rather than of assault. I reassure the hon. Member for Romsey (Sandra Gidley), who probably does not need reassurance, that these and a host of amendments tabled this morning are designed to provoke discussion and to help us to see whether we can improve this part of the Bill.

There is no doubt that the Bill presents some problems. The basic problem is that although sexual activity with a child under 13 is already contrary to law, the penalty consequences are nothing like as draconian as we are about to make them. There is something stark about the maximum penalty of life imprisonment that could be imposed, when one considers that some of the activities could well be, as my hon. Friend the Member for Woking so rightly described, consensual sexual activity between two young people or children of the same age—12 and three quarters, or 12 and 11 months, for example.

On the face of it, unless printed guidelines are available, it will be possible for prosecutions to be mounted and for penalties ranging up to life imprisonment to be imposed. The state is taking draconian powers of sanction for a range of sexual offences in respect of which there were previously rather limited powers of punishment—although that latter fact has been the subject of considerable complaint. There are numerous examples of somebody being convicted for this type of activity, but it was consensual and not rape, and that person receiving a remarkably lenient sentence, which has excited public anger, wrath, and in the case of the tabloid press, a lot of foaming at the mouth. There is a very real difficulty.

Is there any way in which we can improve the position? There are two approaches: one, reflected in the amendments that we tabled to provoke the debate, asks whether we should differentiate between different types of sexual activity and whether those activities are consensual or involve an assault. If they involve an assault, most people would agree that there are few problems in classifying that as a serious matter. However, it is difficult to see the dividing line if the act is one of seduction of someone who is immature: one has to ask, as the hon. Member for Romsey said, whether consent can properly be given.

To make the position clear, amendments to this group of clauses, 6 to 9, are designed to provoke debate rather than to propose a solution. Another possible course of action is to consider spelling out differential penalties in the Bill, but I accept that that, too, presents difficulties. One is constantly trying to work one's mind round the different circumstances in which criminality could occur, but we will have to try to do that.

Straying slightly from the current group of amendments, when we reach clauses 10 to 15, which deal with child sex offences, the issue will become even

starker. Although the penalties are slightly different, they are similarly draconian, and people will start to feel even more uneasy if they apply to consensual activity between young people of roughly the same age. We will return to that matter later.

I accept that there is a basic principle, which the Committee may decide to stick to, that for a child under 13 no activity should be tolerated with anyone. If we start to introduce exceptions, we may get ourselves tangled up in knots and provide the very loopholes that we want to avoid.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I am pleased that this subject has been introduced at the beginning of this debate, because I share the view of the hon. Member for Romsey that it may be diverting us away from the important questions of how to deal with serious sexual abusers.

Nevertheless, there is a great deal of concern among children's charities and the Family Planning Association about the proposition that any form of consensual sexual activity between under-16s should be criminalised. A provision to make it clear that that is not the intention behind the Bill might be one way to go. It is difficult to find a solution, and the proposed amendments do not provide it for some of the reasons already mentioned. Mention of assault could exclude some of the activities that we were shocked to hear about in last night's police presentation. The amendments are not correct, but I hope that the Government will come up with a form of words that makes it clear that the provisions do not apply to consensual sexual behaviour between teenagers.

If that does not happen, the Bill will send out a message that works against all that has been achieved in tackling teenage pregnancy and the spread of sexually transmitted diseases. We need a climate of openness and education to tackle those problems, but the Bill tends to push us towards secrecy for young people under 16. Furthermore, we must accept that sexual behaviour is different from what the Committee might wish. On average, boys have their first sexual experience at 13 and girls at 14. How does that affect the clauses that deal with under-13s? We must deal with reality.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am sympathetic to my hon. Friend's argument. When I did my own research and was presented with those statistics, I tried to ascertain what precisely is meant by ''first sexual experience''. A young person's first experience of heavy petting may be at 11 or 12, and that is not normally recorded in the statistics. Perhaps my hon. Friend has better information than I do.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I thank my hon. Friend for that intervention, because those are the same queries as I had. What is meant by the term?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

When the hon. Lady was talking, I was struck by the early age at which young people have their first sexual experience. We are legislating for the future. Young people nowadays reach puberty younger than they did in the past, and that trend may continue, so the hon. Lady is talking about an

interesting area. There could be more problems as the years go by and people reach puberty at an even younger age.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

The hon. Gentleman makes an important point, because young people are developing far earlier and having experiences that in the past would have been reserved to a much older age group. We must take into account what is actually happening. One statistic of which I am sure we are all aware is that a third of all men and a quarter of all women say that they had sex before they were 16.

That is the climate in which we are discussing these issues, and it is important to take all those facts into account when we consider the legislation. However much we wish that such activities did not take place at such a young age, that is what happens and we must try to get into the Bill a provision that deals with consensual activities between young people. If 13 is the average age at which boys first take part in sexual activity, I do not think that I can go along with the views of the hon. Member for Romsey that what we are discussing is always an offence if it involves someone under 13.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I am extremely sympathetic to and accept almost entirely my hon. Friend's arguments about young people aged over 13, but is there not an important point about what clauses 6 to 8 are designed to achieve? They draw a clear distinction between children under 13 and children over 13. Is that not a vital protective element of the Bill?

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

It is important to distinguish between younger children and older children, but it is obvious that at the age of 13 many young people have had sexual experiences. To say that any sort of experience involving a young person under 13 constitutes criminal activity is a dangerous move.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am interested in the debate on these clauses and I do not want to stray too far from it, but the irony is that, apart from the penalties, there is no distinction between children under 13 and children under 16. All their activities are criminalised in exactly the same way, which is one of the most interesting aspects of the Bill.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North 9:45 am, 11th September 2003

That is a valid point. The Government have said that they will issue guidelines to the CPS and will ensure that unnecessary prosecutions do not take place. However, I wonder whether that is the right way to go about making law. It would be much better if we had something in the Bill to ensure that normal teenage activity is not criminalised. I hope that my hon. Friend the Minister can respond in some way that deals with these issues, because we must go on to discuss how we deal with young people who commit sexual offences and situations in which there is no consent. Those are the young people whom we need to identify and help.

Photo of John Randall John Randall Conservative, Uxbridge

As I was listening to the Minister on the ''Today'' programme—he sounded very reasonable-—one thing occurred to me, which follows on from what the hon. Member for Cardiff, North (Julie Morgan) said. If what we are discussing is

a criminal offence, although the guidelines will have been published and we have had assurances that it will not be taken further, is there not a danger that some youngsters will not know that the guidelines exist? The myth will then go round the schools that these activities are criminal, and young people who engage in them will think that they are in danger of the police coming around and carting them off. I wonder whether that might defeat the object, and make the issue more undercover than we intend.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

We have already had an indication of the sort of debate that we will have in Committee today. I thank the hon. Member for Woking for his kind remarks at the start of the debate—it is indeed my first time on a Standing Committee, and it is an interesting and challenging one to be part of. I hope that I am able to maintain the constructive atmosphere that prevailed in the Committee on Tuesday.

The hon. Gentleman reminded the Committee at the outset that, as we tease out the issues, what unites us is greater than that which may divide us. He said that sexual assault on children, particularly very young children, was ''abhorrent''. That is our starting point, and that unites us far more than it divides us.

The hon. Gentleman also made the point, which has been repeated by other hon. Members on both sides, that we will discuss a wide range of issues this morning. I will respond to some of those issues now, particularly those that relate to the current group of amendments. However, it has become clear that many other issues are involved. I will deal with the issue about consensual—what some might call harmless—sexual activity between under-16s later on, when we discuss other amendments. However, I reassure my hon. Friend the Member for Cardiff, North and other members of the Committee that the aim of the clauses under discussion is not to criminalise ordinary developmental, fairly harmless behaviour by children. None the less, we have a duty to make the legislation robust.

Amendments Nos. 133 to 136 would require the activities covered by the offences in clauses 6 to 9 to have been carried out

''as part of an assault.''

The hon. Member for Romsey graphically illustrated the sort of problems that such a strict interpretation would cause. There would be two consequences. First, where consent is raised as an issue—and we can anticipate that that would be in almost every case—lack of consent would need to be proved in relation to each offence. I emphasise to the hon. Member for Woking that that would apply whether the offender was under 18 or over 18. Secondly, where lack of consent could not be made out by the prosecution, any sexual activity with a child under 13 would be charged under one of the child sex offences in clauses 10 to 14. In essence, there would be no point in having a range of separate offences for children under 13. The hon. Member for Beaconsfield referred to that issue.

It is important that the Government and Parliament send out a clear signal through the legislation that

although 16 is the age of consent, we have strong views about any sort of sexual activity involving, or sexual assault on, a child under 13. We believe that that is a significant difference. If the amendments were accepted, the legislation would fall far short of the Government's commitment to enhance protection for children.

Let me outline the rationale that led us to define the range of child sex offences dealt with in this group of clauses. Our priority is to maximise the protection offered by the law for very young children. We want to make it clear in statute that sexual activity involving a child under the age of 13 will not be tolerated, so we adopted the policy that a child below the age of 13 is not capable of giving legally significant consent. I am grateful for the support of my hon. Friends and the hon. Member for Romsey on the issue. The hon. Lady referred to the presentation by the Metropolitan police that members of the Committee attended yesterday; unfortunately I was elsewhere and could not be present, but I had a similar presentation from the same unit of the Metropolitan police on Monday, so I am aware of the information that they shared. As we heard, it is important that our deliberations are rooted in the reality that they have to deal with.

We chose the benchmark age of 13 as it reflects the provisions of existing sexual offences legislation, whereby cases involving victims below that age trigger higher maximum sentences than those in which the victims are aged 13 or over, but under 16. We have already debated the age at which people mature and whether that age is rising, falling or staying the same. We have drawn the conclusion that as 13 is the age at which children enter their teenage years and which is recognised by society as marking a significant step towards maturity, it seems appropriate for 13 to be the age threshold below which any ostensible consent to sexual activity should not be deemed to be legally significant. Regardless of whether a child under the age of 13 may have the necessary understanding of sexual matters to give ostensible consent to sexual activity, we firmly believe that the law has a duty to protect all children from engaging in sexual activity at such an early age.

We are also anxious to ensure that children below that age should not have to endure detailed questioning either about their sexual understanding or about whether they gave consent to sexual activity on the specific occasion in question. The effect of the amendments would be that the under-13 child offences would apply only when the sexual activity was forced upon the child. It would follow from that that in some circumstances children under 13 could be deemed capable of consenting to such sexual activity; that is completely at odds with our position.

If the amendments were accepted, there would be nothing to distinguish between offences involving children under 13 as being particularly serious or deviant behaviour and it is important that the Committee, and Parliament, send the message that we do regard that as serious and deviant behaviour. In addition, in connection with proving that an assault has taken place, children under 13 would have to face cross-examination in relation to consent in court,

which is something that we have expressly sought to avoid. Young children should not be put through that experience.

The central point made by the hon. Member for Beaconsfield was about maximum penalties. Without making any commitments or promises, I am happy to reflect on the matter in the light of his comments. In my view, the amendments would totally undermine our policy and weaken protection for vulnerable children under 13. For the reasons I have given, I hope that the hon. Member for Woking will withdraw the amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

We have had a useful opening debate in which we have laid out some thoughts. The amendments, which I shall seek leave to withdraw, would not sort out what you and I, Mr. Griffiths, might call the consent issue. That problem remains, and we shall return to it in clauses 7 and 8.

We should remember that clause 6 deals with rape of a child under 13, which is an extremely serious matter. Other, more forceful points will be made in respect of clauses 7 and 8, particularly about the consent issue. I am pleased that the Minister said he would reflect on the issue of maximum penalties; I am sure that he will seek to make progress on those matters between now and Report. I am sure that discussions will continue to see if there is a perfect answer to some of the problems we have placed before the Committee.

On behalf of my hon. Friends, I thank the Minister sincerely for his reply. To enable the debate to move on to clauses 7 and 8 and beyond, I beg to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.