It is a pleasure to serve under your chairmanship, Mr Paisley.
As my hon. Friend indicated, I have been in post for only a few short weeks, but it is already crystal clear to me that this is an extremely important issue which requires a clear, considered and decisive response. The Government have been reviewing the law in this area. I have said that we should urgently consider all options, including legislative change, and must be in a position to announce next steps by the end of May.
Turning to some basic principles, protecting children and young people from the scourge of sexual abuse and exploitation is a top priority for this Government. Ensuring that the law is effective in providing that protection is not just our priority, but our duty. As most stakeholders acknowledge, however, this area is not without complexity—that is not a reason not to tackle it, but we need to advert to it. I will set out some of the issues and explain why charting the way ahead requires careful thought.
It is worth taking a moment to summarise the state of the existing law. In a short debate, that can only be a brief overview. As we know, sexual activity with a child under 16 is of course always a serious criminal offence, regardless of consent, and non-consensual activity is a crime regardless of the age of the victim or the relationship between the victim and perpetrator.
Alongside those two offences, to turn to positions of trust, the Sexual Offences Act 2003 created a number of offences that specifically target any sexual activity between a 16 or 17-year-old young person and people who hold a defined “position of trust” in respect of that young person, even if such activity is consensual, as my hon. Friend indicated.
Those offences were designed to build on the general child sex offences in the 2003 Act, and are defined to target situations in which the young person has considerable dependency on the adult involved, often combined with an element of vulnerability of the young person. The offences are directed at those who are employed to look after young people under the age of 18, such as those providing care for a young person in a residential care home, a hospital or an educational institution. That particularly adverts to the fact that the state has a role in the child’s development or care.
As my hon. Friend made crystal clear, those offences do not cover all positions in which a person might have contact with, or a supervisory role of, a young person aged under 18. That was a deliberate decision by the Government of the day. In preparation for this debate, I looked up some of the relevant debates. The issue of scope was raised in the other place by Baroness Blatch, a Conservative, on
“I understand the noble Baroness’s argument, but a line has to be drawn somewhere and we think that is the right place”.—[Official Report, House of Lords,
My sense is that that judgment may well be wrong but, in fairness to the noble lord, it is not a straightforward one to make. What is at stake here is a need to balance the legal right, as prescribed by Parliament, for young persons aged 16 and over to consent to sexual activity, with the proper desire to protect vulnerable young people from manipulation.
Another complicating feature is the evolving case law in the area. In certain situations, the criminal division of the Court of Appeal has already been clear that supposed consent may be vitiated or even negated, thereby creating a criminal offence in any event. To put that in plain English and to give an example, in the case of McNally, deception by a defendant as to her sex—she falsely claimed she was a man—was held to vitiate the victim’s consent to intercourse.
That is important because, as the Crown Prosecution Service now indicates in its charging decisions, in certain circumstances that ruling could apply where perpetrators were in a position of power in which they could abuse their trust over a victim. If we look at the CPS charging decision—in other words, when making a decision about whether there truly was consent in a relationship—one of the matters that has to be considered is:
“Where the suspect was in a position of power where they could abuse their trust, especially because of their position or status—e.g. a family member, teacher, religious leader, employer, gang member, carer, doctor”.
The point is that it is no longer necessarily automatically good enough for the defendant to say, “Look, she consented”, if in fact that will was suborned in some way. That might well be a very proper reason why the CPS could conclude that there had been no consent.