Clause 20 - Abuse of position of trust: sexual activity in the presence of a child

Sexual Offences Bill [Lords] – in a Public Bill Committee at 3:00 pm on 16th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 3:00 pm, 16th September 2003

I beg to move amendment No. 202, in

clause 20, page 9, line 10, leave out

'for the purpose of obtaining sexual gratification'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 204, in

clause 34, page 17, line 33, leave out

'for the purpose of obtaining sexual gratification'.

Amendment No. 205, in

clause 38, page 19, line 26, leave out

'for the purpose of obtaining sexual gratification'.

Amendment No. 206, in

clause 42, page 21, line 36, leave out

'for the purpose of obtaining sexual gratification'.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

These amendments address the same point: although amendments Nos. 204, 205 and 206 relate to later clauses, they are worded in the same way as amendment No. 202, so it is correct that they have all been grouped together.

I will illustrate the point by discussing clause 20. Amendment No. 202 would delete the words,

''for the purpose of obtaining sexual gratification''.

I wish to make it clear that I do not object to this clause in principle, but I invite the Committee to read it with those words deleted:

''A person aged 18 or over (A) commits an offence if—

(a) he intentionally engages in an activity,

(b) the activity is sexual,

(c) . . . he engages in it in the presence of another person (B), knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,

(d) A is in a position of trust in relation to B,

(e) where subsection (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B''.

It goes on, but I need not read any further.

My question is simple: what is the purpose of introducing the following words as a preface to subsection (1)(c):

''for the purpose of gaining sexual gratification''?

The activity already has to be sexual within the terms of clause 79, which we have considered, so what does that phrase add? A sexual activity would have to be very unusual to be performed not for the purpose of sexual gratification, although I am aware that permutations of human behaviour are almost endless.

That phrase requires something further to be proved that is not otherwise necessary. Why do we require that to be proved? There is an argument that the words,

''for the purpose of gaining sexual gratification''

duplicate the meaning of the words,

''the activity is sexual''.

That is why I want to delete the first of those phrases. If the Under-Secretary can provide me with a good reason why it should remain, I will withdraw the amendment. However, he may conclude that those words are unnecessary in this context—and that that is the case in the other clauses as well.

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

I shall try to respond briefly to the hon. Gentleman's challenge by giving him an example. A teacher sets out on a day trip with a number of the children at the school where he works, and this is an occasion when the spouses and partners of the staff are invited too—on the face of it, an enjoyable day out. The teacher's partner travels with the teacher and during the course of the day they kiss each other in a very sexual way: they have a passionate kiss in front of the 15-year-old children who are under the care of the teacher. The teacher knows that the children are watching, but he does not engage in the kiss to get sexual gratification from the fact that he knows that they are watching; it is a sexual kiss with his partner that is part of their relationship.

I would argue that that is an inappropriate way to behave; it is probably unprofessional, and no doubt such behaviour would be dealt with by the school authorities. However, that is very different from a situation in which the teacher stays behind after class with three pupils to give them extra tuition and starts to masturbate, knowing that the pupils are watching him. That would be for the purpose of sexual gratification.

We want to be clear. We want to capture an offence in which the fact that children are present and watching the sexual activity gives rise to the offender's sexual gratification. We do not want to cover any other sexual activity that may be going on. I hope that that practical example will demonstrate why in our view it is important that the ''sexual gratification'' wording remains.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I have to say that when I read the clause and the other clauses it had not occurred to me that the use of the words ''sexual gratification'' was designed to narrow the scope of the definition that ''the activity is sexual''. I had not understood that at all. I had interpreted ''sexual gratification'' as anything that gives a person sexual pleasure. Engaging in passionate kissing in the back of a coach can give someone as much sexual pleasure as sexual intercourse, although it may be of a different nature. That was why I felt that the definition was strange.

I do not know whether the words ''sexual gratification'' are defined in the Bill; I confess that I have not seen, and have no recollection of, such a definition. If there is such a definition, that would support what the Under-Secretary has just said. Otherwise, if the words:

''for the purpose of obtaining sexual gratification''

are given their ordinary English meaning, my interpretation—although his and that of his officials may be different—would not lead me to think that there was a distinction made, for instance, between passionate kissing and masturbation. That is something that the Government ought to consider.

However, perhaps I am quite wrong and there is a well-established definition of which I am unaware.

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

We keep returning to the definition of the word ''sexual'' or, in this context, ''sexual gratification''. For the purposes of the amendment, the important point is that the ''sexual gratification'', however that is finally defined, is gained from engaging in the act in the presence of the child in relation to whom the adult has a position of trust. That is the key point.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

On that basis, a teacher and his partner could take a party of schoolchildren to some woodland and, knowing but not caring that the children were watching, they could decide to engage in full sexual intercourse under a tree. In those circumstances, am I to understand that, because the teacher would be able to say that the purpose of the act was not to obtain sexual gratification from the children watching him do it, he would be exculpated from the offence? I cannot believe that that is what the Under-Secretary intends. If that is not what he intends, I am still unpersuaded that the words:

''for the purpose of obtaining sexual gratification''

are necessary, because they only need to be there to qualify the ''activity'' being ''sexual''. I appreciate that the distinction is the degree of culpability, but if someone in the position of trust engages in inappropriate activity, why has he not committed an offence if the activity, although inappropriate, was not engaged in for the purpose of obtaining sexual gratification?

The difficulties faced by a jury in resolving such issues seem considerable. I question whether the provision is needed, but I leave the matter to the Minister. I shall not press the amendment to a Division, but I hope that the hon. Gentleman will think about it further. At present, I am not completely persuaded that that part of the clause is necessary, although I understand the motive behind it.

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

Behaviour such as full sexual intercourse taking place under a tree would be highly unprofessional and quite wrong. However, the hon. Gentleman asked me to say whether that act would be different from the act that I described. My immediate response is that the more outrageous the act, the more likely it is to be done in the knowledge that the children were watching and for sexual gratification purposes.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Am I to understand that the sexual gratification is to be obtained from the act itself or from the fact that other people are watching it? The distinction will become extraordinary difficult for a jury to resolve. If the jury has to resolve that difficulty, a complicated question will be asked of it.

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

I do not think that a jury would have difficulty in drawing such a distinction. Clearly, such an act would be a sex offence. In trying to uncouple—pardon the pun—the two scenarios of whether it is engaging in the act or the fact that people are watching it that gives sexual gratification, I must say that such activity is all part of the same act of sexual

gratification. I am sure that a jury would judge it as such.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am grateful to the Minister. I shall go away and think about the matter. I should be grateful if any member of the Committee has any views on it, which we can discuss afterwards. I remain slightly puzzled by the double requirement. If the activity is sexual and done deliberately in the presence of children, that is what we want to criminalise. To tell a jury that it can convict only if it is satisfied that the purpose of the act is sexual gratification is a complicated feature that is difficult to understand, as is the purpose behind it. Surely the clause is designed to stop an activity that is deliberately carried out in an inappropriate fashion.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I shall be grateful if the hon. Gentleman can deal with my query. There are two different tracks of argument. The two schoolteachers would know that their kiss was being observed, but would they have had an intention of that happening? I wonder whether the clause should state, ''knowing and intending that B should be aware''?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Lady makes a good point. That could be an alternative approach. It would still remove that part of the clause which the amendment would remove. I am slightly sorry that I may have not got across my point. I may not even have a point, but I shall reflect on the matter. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 50, in

clause 20, page 9, line 10, leave out from 'it' to 'knowing' in line 11 and insert—

'(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) '.—[Paul Goggins.]

Clause 20, as amended, ordered to stand part of the Bill.