Clause 49 - Paying for sexual services of a child

Sexual Offences Bill [Lords] – in a Public Bill Committee at 10:00 am on 18th September 2003.

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Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 10:00 am, 18th September 2003

I beg to move amendment No. 9, in

clause 49, page 26, line 26, leave out

'against a person under 16'.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 10, in

clause 49, page 26, line 28, leave out subsections (5) and (6).

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

The amendments are designed to ensure that the judiciary have the power to hand down a maximum sentence of 14 years in any case where a person is convicted of paying for sex with a child, and to remove the upper limit of seven years where the child is aged 16 or over. I am grateful to Liberal Democrat Members for supporting the amendments.

The Government are worthy of enormous praise for the introduction of clauses 49 to 53. For the first time, the range of offences related to the abuse of children through prostitution and pornography are properly laid out in law. The clauses acknowledge that all children up to the age of 18 are victims of those dreadful forms of abuse. The fact that they are in the Bill is a great credit to the Government, as they are some of its most important elements.

Clause 49 could be improved, and I am extremely grateful to a range of child care organisations for supporting the amendments. They are supported by Barnardo's, Childline, The Children's Society, End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes, the National Children's Bureau, the National Society for the Prevention of Cruelty to Children, NCH and UNICEF UK. The amendments ask the Government to reconsider the age distinctions that relate to sentencing, to ensure that the circumstances of each case can be taken into proper consideration. At the moment the clause proposes that, for cases involving under-16s, the maximum sentence should be imprisonment for 14 years, and for under-13s, it should be life; that is entirely in accordance with the principles set out elsewhere in the Bill. However, for 16 and 17-year-olds, the proposed maximum sentence is seven years. The amendments would ensure that the court had at its disposal a maximum sentence of up to 14 years imprisonment in all cases involving children over 13.

The offence of paying for sex with a child is based on the recommendations in ''Setting the Boundaries'', a major review of sex offences which sets out clearly that the law needs to make it plain that young people under 18 should not sell, or be sold for, sex. Quite properly, the review uses the United Nations convention on the rights of the child's definition of ''child'' as anyone under 18. Article 19 of that convention states that all children should be protected from violence and abuse.

By making distinctions in the maximum sentence on the basis of age, the clause implies that, in all cases, the gravity of the offence and the effects on the child are

less if the child is over 16, whatever the evidence of the circumstances in which that crime was committed. The lower maximum sentence for 16 and 17-year-olds, and for 17-year-olds in Northern Ireland, implies that the fact that the child is old enough to consent to sexual intercourse is relevant to the offences, and that the child can give informed consent to involvement in prostitution.

All research would suggest that the reality for children is that prostitution has nothing to do with consent and the age of consent. The experiences of children abused through prostitution demonstrate that a high level of control and coercion by adults is involved. That means that any distinctions in the law made on the basis of the concept of consent to sexual intercourse outside the context of prostitution are irrelevant.

I have before me a book called, ''More than one chance! Young people involved in prostitution speak out''—an interesting and worthy document, which I recommend to the Committee. There is a relevant quote from a woman called Frances, who says:

''There's nothing nice, nothing empowering, nothing glamorous about prostitution, it destroys you, it destroys your soul, it's an awful way of life. I've met lots and lots of women while I worked as a prostitute and since I've left prostitution . . . never once have I met a confident, happy, contented hooker, I've just met very devastated and damaged people and drug-addicted people. And people get out and can rebuild their lives, you know, and be happy, but when you're in it it's a very sad and lonely world.''

That woman was 32, but she had been working as a prostitute since the age of 14. We should all acknowledge that the age of consent is completely irrelevant to that sad and lonely world, which would destroy the soul of someone aged 16 or 17 just as effectively as that of someone aged 14 or 15.

The charities say that because of their work with children and young people abused through prostitution they know that the control and coercion imposed on 16 and 17-year-olds most often commences at a much younger age. Young people at that age are conditioned into a lifestyle of sexual exploitation, with the result that they are not able to make informed choices, whether they are 14, 15, 16 or 17 years old. By making payment for sex with a child under 18 an offence, the clause recognises that there is a complex range of factors behind children's involvement in prostitution.

We know the risk factors: the prevalence of disruption in early life, experiences of family breakdown and conflict and of physical and sexual abuse, the trauma of being looked after and the experiences that led to that, the targeting of care institutions by adult male abusers, the experiences of children and young people who run away or are forced to leave home or substitute care, and drug use. Vulnerability at whatever age—14, 15, 16 or 17—is identified and targeted by abusers and the risk factors that we have identified apply to all children abused through prostitution, irrespective of whether they have reached the age at which they are legally deemed able to give consent to sexual activity in more normal circumstances.

In making it an offence to pay for sex with a child under 18, the Bill should follow through its rationale by ensuring that the provisions on sentencing recognise the reality of the abuse that children suffer through prostitution and recognise that 16 and 17-year-olds have no more ability to make informed choices about their involvement in prostitution than younger children aged 13 to 15.

In accordance with the fact that much is truly excellent in the Bill, we should support the amendments and ensure that we protect all children in every way that we can from all the harm caused by that dreadful form of abuse.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I do not propose to repeat at length the arguments put by the hon. Member for Lancaster and Wyre (Mr. Dawson), which we Liberal Democrats agree with wholeheartedly. I just want to voice my concern that in the other place the Government, responding to similar concerns, placed great weight on the age of consent as a factor. I support the hon. Gentleman when he says that consent often should not be a factor in such cases because prostitution and child pornography are both coercive in nature and not something that 16 or 17-year-olds, or anyone of any age, indulge in if they have any choice. Sometimes people do such things because they think that they have no choice; they have no money, or they may have left home. It is all about coercion.

The emphasis on the age of consent, and the fact that age must be proved, is of concern because the onus is on the prosecution to establish the offender's belief in the age of the child. There are concerns that that could result in fewer prosecutions or in the passing of more lenient sentences, because of the difficulty of establishing age. So we support the amendments, which clarify that the Bill is really about protecting children of all ages and that includes those between the ages of 16 and 18.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 10:15 am, 18th September 2003

I have great sympathy with the amendment moved by the hon. Member for Lancaster and Wyre. Clearly, prostitution is undesirable in relation to those of any age. If it involves those under 18, it is a very serious matter. I am in favour of his amendment. It seems to me that if one got rid of the two-tier system of sentences of seven and 14 years, it would still leave a measure of discretion to the court. The younger the child, the heavier the sentence is likely to be.

Against that, I can also see the Government's approach to the matter. Given that we have certain rules for those over 16, and those under 16, in relation to general sexual behaviour, making a distinction regarding the maximum sentence to reflect that is a perfectly correct approach, which is found in all sorts of statutes and criminal offences. That said, I have sympathy with what the hon. Gentleman is seeking to do, which would send out a powerful message.

It would be interesting to hear from the Minister whether there are examples of circumstances where she is satisfied that in the case of an activity with a child of 17 there is no possibility whatever that a court would wish to impose a sentence of imprisonment of more

than seven years. I suspect that the Minister will say that the Government have thought about that and cannot think of such an example under current sentencing tariffs. As I say, we could simply leave the matter to the court's discretion.

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

I was much persuaded by the hon. Gentleman's arguments during the previous debate on indecent photographs. I do not understand why he is slightly demurring over these amendments, which I should have thought are based on the same principle—that of recognising that children are children under 18, and ensuring that they are protected. In this case, it is a matter of a worse form of abuse.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I appreciate the hon. Gentleman's point, but there is a distinction. In one case, I was dealing with the question of what should or should not be criminal. We are now dealing with the way in which we reflect or mark our disapproval of conduct through the sentence imposed. The act is still criminal. There is a distinction to be made between those two concepts.

I am grateful to the hon. Gentleman for his comments in relation to what I said earlier. I am sympathetic to the intention behind his amendment, but it is also right to say that it is undesirable to have on the statute book draconian penalties relating to criminal offences that are never imposed in reality. There should be something in the tariff that reflects what is likely to be imposed by the court; otherwise, as I am sure the hon. Gentleman will understand, there would be no point in Parliament putting upper limits on tariffs at all.

We could, if we wanted, remove all upper limits on tariff sentences and tell judges to do whatever they like. A burglar or someone stealing in a particularly serious case could be sent to prison for life. We could remove all tariffs if Parliament wished to do so. Historically, we have tended to impose upper limits, and those limits are supposed to mark what we consider to be the most serious type of offence in relation to the category of criminality that we are considering. The difference between the categories of seven and 14 years is that prostitution with a child under 16 is deemed to be more serious because that child cannot consent to sexual intercourse at all. That is the distinction.

The hon. Gentleman's amendment could easily be accepted if the Government wanted it, and I shall be interested to hear from the Minister the reasons for making this particular distinction.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

As we have heard, clause 49 introduces a new offence, and I am grateful for the recognition by my hon. Friend the Member for Lancaster and Wyre of the importance of introducing a new offence, criminalising paying for the sexual services of a child. Existing criminal law as it relates to prostitution focuses only on the activities of the prostitutes themselves, or those who exploit them, such as their pimps. Although it is currently unlawful to engage in sexual activity with a child under 16, we are for the first time making it a criminal offence specifically to buy the sexual services of a child. We must focus on that point in this debate, which is specifically about the purchase of the sexual services of

a child. Other offences in the Bill, which we have debated, make sexual activity with a child a criminal act in its own right.

As my hon. Friend said, the amendment's purpose is to remove the distinctions by age on the proposed penalties for the offence. As it is drafted, the offence carries three bands of penalties, depending on the age of the child victim and the type of sexual service that was paid for. For penetrative sexual activity involving a child under 13, an offender could face life imprisonment. For non-penetrative sex with a child under 13, or any type of sex with a child aged 13 to 16, the offence carries a heavy maximum penalty of 14 years. For any type of sexual services bought from a child aged 16 or 17, an offender faces a maximum of seven years in prison.

I would say first to my hon. Friend that an amendment saying, for example, that there should simply be a maximum penalty for all those different circumstances such as life imprisonment or 14 years has not been tabled today. Members of the Committee, including my hon. Friend, have implicitly accepted the point raised by the hon. Member for Beaconsfield, which is that we have a well-established practice of setting down maximum sentences when we are criminalising certain behaviour to take into account different circumstances in different scenarios, and what we think the upper limit of what courts are likely to impose would be. My hon. Friend has implicitly accepted that the gradation of sentencing in relation to those offences to reflect the varying vulnerability of children, the nature of the sexual activity and the particular circumstances is both reasonable and proportionate, which is why there are three gradations. My hon. Friend is not arguing against the distinctions at the upper limits.

Secondly, the fact that three grades of sentencing are proposed does not mean that the activity is any less serious in one situation or another. We are criminalising the activity because it is a wholly serious matter whenever someone pays for the sexual services of anyone under 18. However, the maximum sentences imposed should reflect not lesser seriousness but the different circumstances in relation to the vulnerability of children.

Thirdly, I point out to my hon. Friend the Member for Lancaster and Wyre that a seven-year sentence is still, by anyone's standards, a significant maximum sentence for a court to be able to impose. In part, a seven-year sentence for offences relating to young people aged 16 or 17 reflects—I take his point that in some circumstances such young people are very vulnerable—the fact that they are over the legal age of consent to sexual activity. It is therefore appropriate that that particular factor is part of the reason why the maximum penalty is focused on paying for the sexual services of a child as opposed to the circumstances, age and vulnerability of the child, which is certainly the focus of the other two groups.

I say to my hon. Friend that the argument is difficult. I understand his point and there could be a legitimate reason for saying, ''Let's have no gradations

whatsoever. Let's simply have life imprisonment, and we'll let the courts decide.'' We have not often taken that route when legislating. It is a valid approach to say that we should reflect different circumstances in the different maximum tariffs that we want courts to be able to impose. That largely reflects what we think that courts will want to do. We do not envisage it as very likely that a court will want to impose a sentence of more than seven years in a situation involving a young person of 16 or 17.

This is a matter of judgment. I am not saying that my hon. Friend's argument is not valid, but in using gradations of sentencing we are following a well established tradition, which we feel has validity to distinguish in law, in this new offence of paying for the sexual services of a child, children of different ages and different vulnerabilities with different maximum sentences.

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

I am grateful to my hon. Friend for her reply, but I am quite disappointed by it. I accepted when I first spoke that the Government were maintaining the very important distinction that there has been throughout the Bill between under-13s and those aged 13 and over. I accept entirely that there is an important gradation of sentencing for those who abuse children in those particular age groups.

However, my hon. Friend has not convinced me in any way at all that abuse through prostitution has any link with the age of consent of 16. All the experience of young people who have been involved in prostitution, and all the work that has been undertaken with young people who have been subjected to that appalling abuse, says nothing about the age of consent or about ordinary, normal relationships undertaken by young people over the age of 16. This is one of the most appalling, coercive, damaging forms of child abuse that there can be and it is, quite honestly, a great shame that despite accepting the United Nations convention definition that a child is someone under the age of 18 and the definition laid down in our Children Act 1989 that a child is anyone under the age of 18, the Government seek to draw what I regard as a spurious distinction between under-16s and those aged 16 and over.

I have not attempted to argue that we should have mandatory sentences, or the opportunity for sentences of life imprisonment, for people convicted of such offences against children aged 13 and over, but I cannot believe it right for the Committee to rule out the possibility that a court might want to sentence someone convicted of the abuse of someone aged 16 to more than seven years imprisonment. We make a mistake by not allowing that possibility. Decisions must be taken on individual circumstances. I am not seeking to argue that everyone convicted of this appalling offence should immediately receive a sentence of 14 years, but we are wrong to rule out the possibility of a court wanting to do that, with the major point of sentencing being to protect the public and other young people from someone who has abused children in that way.

I have fully acknowledged that we owe a huge debt of gratitude to the Government for introducing clause 49 and the other clauses associated with it. It is fine

legislation indeed, and it would be a shame if it were not carried through to the fullest possible extent. I shall withdraw the amendment, but with real regret. I hope that my hon. Friend will spend time to reflect on the issue and think again about the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.