The Gay and Lesbian Humanist Association (GALHA) welcome most of the proposals in CM 5668. In particular, we applaud the Home Secretary’s wish to update and codify the laws on sexual offences and to end the discriminatory aspects of the current laws. Opportunities to update such controversial laws occur rarely, and the government is to be congratulated on providing one. We were particularly pleased to see (paragraph 3) that legislation will be introduced early next year, and hope that it will become law as soon as possible in 2003.
GALHA start from the position that, though it is important to meet public concerns, it is vital to do so in ways that reflect the underlying realities, rather than simply accepting the way things are presented in the popular prints. Some of the distress and fear mentioned in paragraph 5 can result from misconceptions, and correcting these is necessary.
While supporting many of the new measures now being proposed, we think it appropriate to record our opposition to some of the other measures mentioned in paragraph 6, which constitute reductions in the civil liberties of our members as well as of other citizens. We see no reason, for example, why the additional period of supervision for sex offenders mentioned in the second bullet point is needed. We are not convinced of the need to amend the rule against double jeopardy – a disproportionate reaction, pandering to prejudices in the popular press. And we do not think it just that juries should have access to information on previous convictions. Furthermore, looking at the box on page 11, we would emphasise our view that it is child abuse which should be punished and not its depiction.
In view of the decision to tighten the notification requirements for sex offenders (paragraph 4), it will be important to ensure the removal from the sex offenders register of the names of people whose names were added as a result of convictions for consensual acts which are not, or will not in future be, offences. As things stand, the requirement to treat everyone in society fairly (paragraph 14) is not being met.
While welcoming the long-overdue review mentioned in paragraph 8, we noted two glaring omissions. The offences of conspiracy to corrupt public morals or outrage public decency retained by section 5(3) of the Criminal Law Act 1977 should be abolished; and so should the common law offences relating to consensual sado-masochistic acts declared by the House of Lords in R. v. Brown [1993] 2 All ER 75 (HL). This second example reinforces the need for greater clarity on the law of consent mentioned in paragraph 11, as well as being a breach of the principle laid down at the end of paragraph 14.
We of course agree (paragraph 10) that perpetrators of rape should know that the law will not tolerate such activities, but we are concerned that people falsely accused of such crimes should be given adequate protection.
The approach in paragraph 15 is sensible – but, while unwilling witnesses need protection, there should be a requirement that ordinary members of the general public must appear in court to testify that they were offended by something that was forced upon their attention.
Turning from the Overview to the more specific proposals in the body of the paper, we could not help being reminded by the conclusion of paragraph 17 of the lines from Casablanca: “Major Strasser has been shot. Round up the usual suspects.”
The proposed new central database discussed in paragraph 18 will reinforce the importance of maintaining the confidentiality and accuracy of the data held within it. Knowingly or recklessly entering false or inaccurate information, and allowing use by unauthorised persons and/or for unauthorised purposes, should be specific offences which, given the potential effects on innocent people, should carry heavy custodial sentences. The wider exchange of data proposed in paragraphs 24 and 27 makes this vital.
As always with central databases, the government will need to ensure that it is not locked in to one supplier. Justice and equity require that, once actions are decriminalised, the names of people previously convicted of them should be removed from the database.
It is not clear how the evidence of the risk of causing serious harm mentioned in paragraph 25 will be assessed. This needs spelling out. This is relevant too to the duty described in the quotation in the box on page 14.
Incidentally, we were surprised that offenders are referred to in paragraph 20 and elsewhere as “he”. More gender-free language would be appropriate in the twenty-first century.
A number of proposals are made in Chapter 1 for tightening the régimes affecting sex offenders. It is important that the results of these changes should be monitored, and compared with their costs – in terms of civil liberties as well as the burden on the taxpayer. The bill should require the analyses of these comparisons to be reported to parliament and published at regular intervals.
The proposals in Chapter 2 about the law of consent are of great importance. The failure of the current paper to discuss sado-masochistic sexual activities is a major, and disappointing, omission for the very reasons spelled out in paragraph 28. What has happened to the proposals in the Law Commission’s Consultation Paper 139? This omission is particularly surprising in view of the very welcome statement in paragraph 63 that “we have no intention of interfering with the right of any individual to engage in consensual sexual relationships” – an attitude which should be the basis for the whole approach of the law to sexual activities.
We support the approach in Chapter 2, subject to repairing the above omission and to two further reservations. First, we do not think that all sexual activity between children under 13 is necessarily abusive, as implied by paragraph 37: indeed, a similar point is made in paragraph 52. Secondly, we do not think that it is right to deny all sexual activity (other, presumably, than solitary masturbation) to the people discussed in paragraph 38 – though we recognise the problems that their position creates and cannot offer a simple solution. The last sentence of paragraph 61 is relevant here too.
Two general points arise from the proposals about non-consensual offences in Chapter 3. First, the basis for the different penalties for the various offences is unclear and should be explained. Secondly, terms such as an indecent act in paragraph 42 and sexual assault in paragraph 45 should be clearly defined. These points apply also to offences discussed in later chapters.
We agree that the case for a separate offence of date rape has not been made. Though strongly supporting the principle (paragraph 42) that sexual offences should not be gender-specific, we also accept the need for an exception in the case of rape.
While naturally supporting the need to protect children and the most vulnerable (Chapter 4), our view remains that the best way to do that is through the law requiring proof that genuine consent has not been given, rather than through arbitrary ages at which consent is deemed not to be given regardless of the specific circumstances of each case.
The proposed offence of sexual grooming (paragraph 54) has already attracted much press and public attention because of fears about its potentially wide scope. It will be particularly important to give a clear and precise definition of the activities which this provision is intended to cover. Adults must not become afraid of helping and caring for children in innocent ways because they fear that this might put them on the wrong side of the law. The potential for blackmail of adults by unscrupulous children must be faced too. Similarly, the penultimate sentence in paragraph 55 raises the issue of what should happen if an adult reasonably believes a child to be over 18. Lying about ages can potentially apply both ways – which would be particularly relevant to the last sentence of paragraph 57.
Paragraph 59 seems to imply that actions should be made illegal simply because “it is generally believed that all such behaviour is wrong and should be covered by the criminal law”. In our view the law should deal only with acts that do actual harm. We see no need for the new offence of prohibited adult sexual relationships. If they are the result of childhood grooming (and no evidence of the prevalence of this is given in the paper), it is the grooming which should be punished, not adult incest. Here, as always, the principle that “we have no intention of interfering with the right of any individual to engage in consensual sexual relationships” should apply.
That principle is of particular significance for the proposals in Chapter 5. We see no justification for creating an offence of commercial sexual exploitation of adults (paragraph 68). Prostitution itself is rightly not illegal. There is no reason for making it illegal to encourage people to engage in that activity, and soliciting for that purpose should not be illegal (paragraph 72).
The offence of commercial exploitation of a child (paragraph 66) should only relate to children under 16. People old enough to choose to fight and die for their country should be treated as adults in other respects too.
Paragraph 72 talks about making some prostitution-related offences gender neutral: if such offences are retained, why should this not apply to all of them?
Paragraph 76 proposes criminalising activities which cause alarm and distress. Hearing fundamentalists from various religions preaching against humanists and gay and lesbian people causes our members alarm and distress, but we do not wish it to be illegal. At the very least, the proposed definition of indecent exposure should require the accused to have intended to cause alarm and distress in circumstances where it was reasonably likely that their behaviour would indeed cause alarm or distress to a reasonable person.
The new offence proposed in paragraph 77 should replace existing public order offences, or unnecessary uncertainty will remain. More generally, the new act should replace all existing statutory and common law sexual offences.
We see no need for an offence of bestiality (paragraph 79) in addition to the existing offence of cruelty to animals.
Finally, for the avoidance of doubt and in view of court decisions following the Sexual Offences Act 1967, there should be statutory provisions that homosexual behaviour as such is not to be deemed to be immoral, illegal, or unlawful; and removing any presumption in law that consenting sexual activity outside marriage – whether homosexual or heterosexual – is contrary to public policy.