Hon. Members may be aware that the way in which the definition of ''sexual'' in clause 79 is currently framed caused concern in the other place. It has already been a matter of some debate in this Committee. One of the noble Lords suggested that the clause's wording would be difficult for juries to understand, which could potentially involve their reaching the wrong decision on whether a particular act was sexual. There was also some confusion over the phrase ''(at least)'' in clause 79(1)(a). We do not want to interfere with the practical effect of clause 79 because we believe that it requires the jury to apply the right tests when deciding whether an activity was sexual. However, we have no wish to complicate matters for the jury and are happy to reword clause 79 in the interests of clarity.
Clause 79 provides a definition of ''sexual'' for the purpose of the offences in part 1 and is intended broadly to reflect the definition of ''indecent'' in the context of indecent assault in current case law. The jury are required to use three criteria in their assessment of whether an activity was sexual: whether an act is sexual by its own nature or is only ambiguously sexual by nature; the circumstances in which the act took place; and the purpose of any person in relation to the act. In short, the test covers all activity that a reasonable person would consider to be sexual. However, it rules out any activity that a reasonable person would never consider sexual by reason of its nature, such as removing a person's shoes. That ensures that we do not capture activity that no reasonable person would consider to be sexual, and may have been sexual only because the defendant happened to have a secret fetish not made known to the victim—in that example, a foot fetish.
At present the test in clause 79 works as follows. Its first part, in paragraph (a), covers any fundamentally sexual activity such as sexual intercourse or masturbation. In such cases, a reasonable person would be in no doubt, simply because of the nature of the act. Both the tests at paragraph (a)—that the nature of the act is sexual and that because of its nature a reasonable person would consider it sexual—would be met. As well as activity that is obviously sexual by nature, the clause also covers acts that may or may not be sexual depending on the circumstances and/or purposes of any person. For example, digital penetration of a woman's vagina by a doctor may be fundamental to diagnosis or treatment, but could also be wholly irrelevant and only carried out for the doctor's sexual gratification. The jury must therefore consider the circumstances and the doctor's purpose. Similarly, touching a person's thigh is by its nature possibly sexual, but the circumstances in which the touching takes place, and the reason for it, will determine whether it is in fact a sexual act.
As currently drafted, the whole of clause 79, including paragraphs (a) and (b), is relevant to all decisions on whether an act is sexual. Although the new version of clause 79 continues to apply the same tests, it clearly separates activity that is sexual by nature, and would be considered to be so by any reasonable person regardless of the circumstances in which it takes place or the purpose of any person in relation to it, from activity that is sexual only because of those circumstances or that purpose. That has exactly the same effect as the current test but will be easier for juries to understand. That should ensure that only activities that a reasonable person would consider to be sexual will fall within the scope of the offence in part 1.
Amendment No. 123 is technical and would disapply clause 79 from the offence of sexual activity in a public lavatory, which was debated earlier at clause 67. Hon. Members will recall that by virtue of amendment No. 120, clause 67 now incorporates its own definition of what constitutes sexual activity, which is appropriate to the kind of offending behaviour covered by that offence. I do not intend to speak any further to amendment No. 123, because we
discussed the relevant matters in detail in connection with amendment No. 120.
I simply welcome the amendments. There was no doubt in my mind when I first read the Bill that the definition of the word ''sexual'' in clause 79 as it stood would be a potential disaster area in a jury trial. I just about understood what it meant, but those who represented strongly that it did not read easily and would be very difficult to explain to a jury were absolutely right. One has only to consider the definition in amendment No. 124 to see that it is much easier to understand.
Amendment agreed to.
Amendment made: No. 124, in
clause 79, page 37, line 34, leave out from 'if' to end of line 39 and insert
'a reasonable person would consider that—
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.'.—[Paul Goggins.]
Clause 79, as amended, ordered to stand part of the Bill.