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Child Sexual Exploitation and Consent to Sexual Intercourse

Part of the debate – in Westminster Hall at 11:19 am on 22nd May 2018.

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Photo of Robert Buckland Robert Buckland The Solicitor-General 11:19 am, 22nd May 2018

It is a pleasure to serve under your chairmanship, Mr Bone.

May I put on the record the reason for my presence at this debate, bearing in mind my ministerial responsibility as superintendent of the Crown Prosecution Service of England and Wales? As this debate has been quite rightly focused by my hon. Friend Lucy Allan upon questions of law and the prosecution of these offences, it is entirely appropriate that I am appearing in Westminster Hall today.

May I assure my hon. Friend that I have already had an important conversation with the Under-Secretary of State for the Home Department, who is the Home Office Minister with responsibility for safeguarding? Indeed, Home Office officials are here today with me.

I congratulate my hon. Friend the Member for Telford on securing this debate. I know how much she has campaigned for the victims of child sexual exploitation in her constituency and how she has been a tireless champion of securing an independent inquiry into systematic issues that have resulted in a whole cohort of young people in her local area being failed by the authorities after having to suffer appalling abuse.

I speak not only as a Minister; I have many years’ experience in prosecuting just this type of offence. Having taken what is now the Serious Crime Act 2015 through Parliament as a Minister, I am proud that in that Act we updated the law to remove old-fashioned references to child prostitution in acknowledgement of the fact that when it comes to consent we are dealing with children. These are children who deserve the protection of the law, and to apply to them the standards that can be applied to fully mature adults is a betrayal of their vulnerability and a failure to safeguard them. Over and above everything, the issue must be one of safeguarding. Underlying some of the issues that my hon. Friend raised is perhaps a failure, at times, by the respective agencies and their representatives to understand that safeguarding must come first and therefore that the point of view of the child—the victim—is paramount, rather than considerations of another kind. If people understand that, we will make even further progress.

I have been part of a number of inter-ministerial groups on child sexual exploitation, from my time as a member of the coalition Government right through to this year, and I have been impressed by the sense of purpose the Government have shown in seeking to co-ordinate and improve the work that needs to be done to safeguard children. We have had new legislation on safeguarding and a robust response to the appalling incidents in Rotherham, Rochdale and other local areas that shone a light on the problem often encountered by young people in getting their story regarding child sexual exploitation heard and believed.

My hon. Friend raised a specific case, of which I am aware, and I know that she has written to colleagues in the Home Office. She will get a response; I will undertake to ensure that by writing to her. It would perhaps be invidious for me to make detailed comment on the merits of the case, as a further inquiry investigation is under way, but I take on board her points. She drew the important distinction between consent and knowledge of age, both of which issues I will deal with now, in general terms.

When a case meets the threshold, the police should refer it to the Crown Prosecution Service for a charging decision. That decision is then made by an independent prosecutor in accordance with the code for Crown prosecutors and CPS legal guidelines. On consent, it is important to draw a distinction between consent in fact and consent in law. In fact, the threshold for absence of consent in law is somewhat more rigorous. A child under the age of 16 cannot in law consent to a sexual act. Therefore, a person is guilty of a child sexual offence such as sexual activity with a child contrary to the 2003 Act if sexual activity takes place and the child is either under 13 or is under 16 and the perpetrator does not reasonably believe them to be 16 or over.

My hon. Friend referred to the question of reasonable belief and I assure her that the test is rigorous and takes into account all the evidence in the case. Proof of the age of a child is of course a simple, straightforward matter—date of birth can easily be proved. The question of reasonable belief often depends on the circumstances, but I can assure my hon. Friend that the old chestnut of, “I didn’t know her age. She didn’t tell me,” does not mean that the police and the prosecution are suddenly discharged of any responsibility to bring the case. Wider circumstances need to be considered and assessed. Each case must stand or fall on its facts, and the perception that somehow at all times the burden should be on the child to prove their position is not correct. It is important that we as Ministers and parliamentarians get that message out there, so that young people know that if they come forward they will be taken seriously and treated properly.

Mrs Hodgson knows well from experience—we have worked together on such issues and I am grateful for her presence and her intervention today—that it is vital that young people know that we have moved on from the appalling response we saw in Rotherham and other local authorities and that that approach is no longer acceptable. The courts themselves, in sentencing, now readily acknowledge that. The idea that somehow a child can consent in any way to sexual activity, where consent is not an element of the offence, is no longer relevant in sentencing. Indeed, the courts no longer give defendants any mitigation or concession for so-called implied consent on the part of a victim who is a child. That has been an important development as well.

In the context of offences of rape, other than the rape of a child under 13 for which consent is not necessary, the absence of consent must be proved regardless of age. The definition of consent is that a person agrees by choice and has the freedom and capacity to do so—and there comes the issue. Again, it is important that we send the message out clearly that the age and circumstances of the complainant—the victim—must be taken into account in understanding age and capacity.

Acquiescence is not consent, and that message is vital, particularly in the context of some of the child sexual abuse of which we are all aware. The fact that a vulnerable or young person has been groomed starkly raises the reality that he or she may have been placed in a position in which they have merely acceded to sexual activity, rather than having given real, meaningful consent. The despicable actions of those who prey upon such young people should, and have, come under scrutiny when considering the issue of genuine consent. Even in the absence of clear evidence of grooming, a victim under the age of 16 is likely to be considered vulnerable, regardless of whether the defendant believes them to be older. Evidence that a victim has been drugged or is so intoxicated that they no longer have capacity to consent may also support the absence of consent per se.