Thank you for sending the Gay and Lesbian Humanist Association (GALHA) a copy of the report on Setting the Boundaries: Reforming the law on sex offences. In general, we welcome the approach taken by the review team, whose proposals would significantly improve the law in this field were they all to be implemented. In particular, we welcome the emphasis on the paramountcy of consent and on the equal treatment of men and women.
But there remain some points about which we are unhappy; and, given the likelihood that any reform of the law will set the framework for many years, we think it important that these issues should all be addressed at this stage.
We greatly regret two major omissions. First, the team should have recommended the abolition of the vague and uncertain common law offences of conspiracy to corrupt public morals or outrage public decency.
Secondly, the failure of the team to deal with consenting sado-masochistic sex is unsatisfactory for the reasons indicated in our letter of 7 March 1999 and the enclosure thereto. The team commented in paragraph 0.19 of their Summary Report that “the criminal law should offer protection from all non-consensual sexual activity”. In our view the converse should apply: the criminal law should not interfere with the right of people to indulge in consensual sexual activity. Indeed, this is the very point made two sentences later.
We are also disappointed that the team made so many proposals for increased penalties. They seem to have felt that any liberalizing proposals needed to be offset by restrictive ones.
Turning to the specific recommendations, we would support the redefinition of rape [1], its retention as a single offence [2], and the creation of a new offence of sexual offence by penetration [3]. We suggest, however, that rape should then be treated as a particular case of sexual offence by penetration.
The proposed definition of consent [4] seems reasonable, and we find the arguments for not using the longer form suggested by the Law Commission convincing. However, given the ambiguity of “free” – which could be interpreted as ruling out any form of monetary or other consideration – it would be better to say “willing agreement”. We would also support both the proposal to include a non-exhaustive list of examples where consent should be deemed not to have been given [5] and most of the examples quoted [6]. The wording will need care, however. In the third example we would replace “give” by “give or have given”, because we do not think it practicable to require explicit consent at every stage of sexual activity. The fourth example would be better left to be dealt with under recommendation [31]. We are not convinced that a definition of consent should be in statutory form [7], though the wording in paragraph 2.11.5 seems a good basis for a direction.
We support the proposals on recklessness [8], and on balance consider that a defence of honest belief in willing agreement should be available subject to the qualifications in recommendation [9].
Any new offence of sexual assault [10] should require that it be deliberate; but, given the associations of the term “assault” we are attracted to the alternative description of “sexual touching”.
We agree with the creation of offences of assault to commit rape or sexual assault by penetration [11] and of trespass and of abduction with intent to commit a serious sex offence [12-13]. We are uncertain about the implications of the proposed offence of obtaining sexual penetration by threats or deception in any part of the world and would need convincing of the need for such an extra-territorial offence [14].
We agree with the retention of an offence of administering drugs to stupefy a victim of sexual penetration [15], but are not clear why this cannot be subsumed in that of compelling another to perform sexual acts [16].
We see no logical reason for the retention of an age of consent as such [17] and note that it is presented “as a matter of public policy”. Its arbitrary nature is further illustrated by the wide range of ages mentioned in paragraphs 3.5.1 to 3.5.4 and in the table on page 54. We would prefer alternative ways of protecting young people to invalidating by a legal fiction consent which has in fact been willingly given.
Nevertheless, we appreciate that the concept of an age of consent is likely to be retained in the current social climate, and accept this in the remainder of our submission. Given the falling age of puberty – see, for example, the research reported in the Health section on page 8 of the Independent Review on 8 February 2001 – we think that 12 or even 10 might be a more appropriate age below which a child should be legally deemed to be unable to effectively consent to sexual activity [18]. Recommendation [19] would, as paragraph 3.6.5 points out, create a new offence which does not exist in any other country; and, given the range of the other recommendations in the report, we are not convinced that it is needed here either. Should such a new offence be created, however, there should be a time limit not exceeding ten years on prosecutions [20] for the reasons quoted, but dismissed, in paragraph 3.6.6. We strongly disagree with the review team’s opinion that “in principle ... time limits were not justified for any sexual offences”. On the contrary, we consider that they are essential safeguards for assisting maliciously accused defendants.
We agree that a mistake of fact in age should be available as a defence [21] on one occasion [22], but cannot see why the age of the defendant should be relevant to its use [23].
On balance, we feel that the defence of belief in marriage [24] should be abolished. It is, as paragraph 3.6.17 points out, restricted to heterosexual couples; and, if sex with a girl under 16 is unacceptable “as a matter of public policy”, then marriage elsewhere could not make it acceptable.
While we support the introduction of an offence of the persistent abuse of a child [25], in the light of the discussion in paragraph 3.7.6 we do not think that this should be extended to cases involving more than one child.
It is important that people giving advice on sexual health matters should not be criminalized, and nor should children seeking such help [26]. This principle should be given statutory recognition.
As far as sexual activity between children is concerned [27-28], we find the arguments in paragraph 3.9.4 convincing and would not support the introduction of a new criminal offence. Nevertheless, we accept the need to deal with children who sexually abuse other children [29]. A clear statutory definition of “abuse” is needed.
In paragraph 17 of our letter of 7 March 1999 we drew attention to our own uncertainty about how the law could balance, on the one hand, the high importance of meaningful consent in participation in sexual activities and, on the other hand, our wish not to deprive mentally impaired adults of the human right to enjoy sexual activities. It seems to us that the review team have erred on the side of caution in their proposals in this respect – though we accept the difficulty of balancing protection and pleasure in this area above all [30-31]. As far as the proposal in paragraph 4.5.8 is concerned, we would welcome clarification of clause (2)(b).
We agree that there should be offences relating to a breach of a relationship of care [32-34], but think it important that it should still be possible for those in care who are able to give willing consent to sexual relations to have access to them if they so wish.
The offence of familial sexual abuse [35-37] should be treated as an abuse of trust, limited to age 16, and replace that of incest. Given recent research about the frequency of children being brought up by “fathers” who were not their biological parents, the use of AID, and the spread of adoption, DNA or equivalent testing would be required to prove the existence of the relevant blood relationships. As far as other relationships [38, 41, 42] are concerned, we think they should be covered by the recommendations [32] relating to a breach of a relationship of care. Again, we see no reason for not using the standard age of 16, rather than 18, in this field [39-40]. Given an age of consent of 16, it seems absurd to call a young person under 18 a “child”.
The recommendations [39 and 40] about adoptive siblings are inconsistent. They imply that it is acceptable for them to have sex between the ages of 16 and 18 if they are heterosexual and married, but never if they are homosexual, which conflicts with recommendation [44]. (We appreciate that this particular anomaly would be removed were gay people allowed to marry each other; but it would remain the case that adopted siblings would have an incentive to marry early simply in order to have sex.)
We see no good reason why sexual penetration between any adult close family members should be criminalized [43].
We strongly support recommendation [44] that the law should not treat people differently on grounds of their sexual orientation, but should offer protection from non-consensual sexual activity, and agree with the consequential recommendations about law reform [45-48]. We repeat our proposal that, for the avoidance of doubt, there should be a statutory statement that homosexual behaviour as such is not to be deemed to be immoral, illegal, or unlawful; and that there should be no presumption that consenting sexual activity outside marriage – whether heterosexual or homosexual – is therefore contrary to public policy.
We do not see anything wrong with people having sex – whether for procreation, as a recreation, or on a commercial basis – as long as it is fully consensual on all sides. We therefore would like to see more clearly how “exploitation” would be defined in respect of recommendation [49]. On the other hand, we do agree that the commercial sexual exploitation of children [50-51] should be prohibited. The age should be 16, however. People old enough to choose to fight and die for their country should be treated as adults in other respects.
Given that we see nothing intrinsically wrong with consensual sexual activities, we oppose recommendation [52] which criminalizes the receipt of money from prostitution. We see no reason why recruiting willingly consenting adults for sex work anywhere in the world should be an offence or is necessarily “exploitive” per se. There clearly does need to be a wider review of the whole issue [53].
As far as public behaviour is concerned, we think the law should only penalize activities which are proved in court to have actually caused serious alarm to other people and which would have caused such alarm to a reasonable person. In our view, “indecent exposure” of itself would no longer count as such an activity [54] – as last month’s jury verdict on Vincent Bethell’s public nudity shows. If such an offence is retained, it should be necessary to prove that another person has been harmed. The decision to limit the recommendation to men, and exclude women, is sexist and therefore unacceptable. We cannot support the retention of life as the maximum sentence for outraging public decency [page 144]. If such an offence is retained, a fine would be more appropriate.
On the more general issue, we do not think the law should ban activities simply because they could – or even do – cause distress or offence. Our members are frequently offended by religious people who shout out their views in public; yet we accept their right to do so, however much we are offended by their views. Many people are doubtless offended by public demonstrations by anti-capitalists or by pro-life groups – but this is no justification for banning them provided that they are peaceable. We therefore oppose recommendation [56] on analogous grounds.
We accept the proposals on voyeurism [55], provided that they can be framed in a way which would not obstruct the serious investigation of matters of public concern by the press and by others.
We see no reason for retaining offences of bestiality (as distinct from cruelty to animals) [57] or of necrophilia [58].