Session 2002-03, dated 15 July 2003
COMMITTEE'S REPORT ON SEXUAL OFFENCES BILL
The Home Affairs Committee today (Thursday 10 July) published its report on the Sexual Offences Bill (Fifth Report, Session 2002-03, HC 639), in advance of Second Reading in the Commons on Tuesday 15 July. The report, which broadly welcomes the Bill, focuses on the proposals relating to:
Rape and consent
Sexual activity in public
Meeting a child following sexual grooming
New preventative civil orders
Anonymity for those accused of sexual offences
The Committee endorse some of the key amendments which were made to the Bill during its passage through the Lords. In particular, the Committee welcomes the removal of the "'lesser requirement' of 'recklessness'" from the exposure clause, stating that "it is neither appropriate nor desirable to criminalise legitimate activities such as naturism".
On consent, the Committee welcomes the proposal to adopt a 'reasonableness' test for determining whether the defendant held an honest but mistaken belief in the complainant's consent. It states that "the revised 'reasonableness test' for the defendant's belief in consent is both clearer and simpler than the original drafting. More importantly, it also addresses the concerns about the potential injustice of applying a 'reasonable person' standard to all defendants, regardless of their individual characteristics. By focussing on the individual defendant's belief, the new test will allow the jury to look at characteristics-such as a learning disability or mental disorder-and take them into account". The Committee is also satisfied with the amended proposals for creating presumptions against consent and belief in consent.
However, the Committee expresses its concern over fears that the Bill will create a loophole by legalising sexual activity in public toilets. It "recommends that sexual activity in public toilets should be a criminal offence and suggest that this could be dealt with by an amendment to section 5 of the Public Order Act 1986". The report states that, "at present, section 5 of the Public Order Act 1986 covers (among other things) 'threatening, abusive or insulting words or behaviour, or disorderly behaviour' which is likely to cause harassment, alarm or distress. Although it may be possible-and the Government argue that it is possible-to apply this to sex in public toilets, we believe that it should be made more explicit."
On anonymity, the Committee state that it is "persuaded by the arguments in favour of extending anonymity to the accused" in sex cases. However, it suggests that "anonymity of the accused only be protected for a limited period from allegation to charge" on the basis that this "strikes an appropriate balance between the need to protect potentially innocent suspects from damaging publicity and the wider public interest in retaining free and full reporting of criminal proceedings".
Conclusions and recommendations
Rape and Consent
1. We have no difficulty with the proposal to extend the definition of rape to include forced oral sex. We see the logic of grouping all forms of non-consensual penile penetration-including penetration of the mouth-within the same offence. The law on rape has adapted successfully to changes of definition in the past and we find no reason to suspect that juries will be reluctant to convict on the new definition. (Paragraph 14)
2. We welcome the proposal to adopt a more objective test for determining whether the defendant held an honest but mistaken belief in the complainant's consent. In our view, it is not unreasonable to require a person to take care that the other party is consenting. As the Minister has said, "the cost to him is very slight and the cost to the victim of forced sexual activity is very high indeed". (Paragraph 17)
3. In our view, the revised 'reasonableness test' for a defendant's belief in consent is both clearer and simpler than the original drafting. More importantly, it also addresses the concerns about the potential injustice of applying a "reasonable person" standard to all defendants, regardless of their individual characteristics. By focussing on the individual defendant's belief, the new test will allow the jury to look at characteristics-such as a learning disability or mental disorder-and take them into account. For these reasons, we support Clause 1. (Paragraph 23)
4. We support the amended Clause 76. In our view, the circumstances which will give rise to a rebuttable presumption against consent or a belief in consent are all situations in which consent is generally absent. Accordingly, we do not find it unreasonable to require the defendant-in those circumstances-to show sufficient evidence to raise a real issue about consent, or his belief in consent, before the matter can be put to the jury. (Paragraph 31)
5. We support the amendment to Clause 77, which we believe has addressed the key concerns about the conclusive presumptions. The amended Clause is now confined to two very specific (and indeed unusual) situations involving deception and impersonation, both of which reflect the existing law. (Paragraph 34)
6. In our view, it is neither appropriate nor desirable to criminalise legitimate activities, such as naturism. We therefore welcome the removal of the 'recklessness' element from the offence of exposure (Clause 68). We do not, however, accept that the offence should be further restricted by a requirement for a sexual motive. In our view, this may create more difficulties than it solves and runs of the risk of undermining the very purpose of the offence, which is to protect individuals from distressing-and potentially dangerous-types of behaviour. (Paragraph 39)
Sexual Activity in Public
7. There is much concern and disagreement as to whether this Bill will legalise sexual activity in public toilets. We recommend that sexual activity in public toilets should be a criminal offence and suggest that this could be dealt with by an amendment to section 5 of the Public Order Act 1986, which makes it clear that "insulting" behaviour includes sexual behaviour. This would dispense with the need to prove specific sexual acts and also has the advantage of empowering the police to give a warning before making an arrest. We believe that it is appropriate for this offence to be dealt with in the Magistrates' Court, rather than in the Crown Court. (Paragraph 47)
Meeting a Child following Sexual Grooming
8. We accordingly support the new offence of 'meeting a child following sexual grooming'. (Paragraph 52)
Preventative Civil Orders
9. Whilst we accept the need for Risk of Sexual Harm Orders (RSHOs), we recommend that their use be carefully monitored by the Home Office and the numbers reported annually to Parliament. (Paragraph 58)
10. We recommend that Clause 121(5)(b), which requires a RSHO to be made for a fixed period of at least five years, be deleted from the Bill. The courts should be given discretion to make whatever length of order is needed to protect a child or children from harm. (Paragraph 60)
11. We also believe that the grounds for making an interim RSHO should match more closely the grounds for a full order and recommend that the Bill be amended accordingly. (Paragraph 62)
12. On balance, we are persuaded by the arguments in favour of extending anonymity to the accused. Although there are valid concerns about the implications for the free reporting of criminal proceedings, we believe that sex crimes do fall 'within an entirely different order' to most other crimes. In our view, the stigma that attaches to sexual offences-particularly those involving children-is enormous and the accusation alone can be devastating. If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal. (Paragraph 76)
13. We therefore recommend that the reporting restriction, which currently preserves the anonymity of complainants of sexual offences, be extended to persons accused of those offences. We suggest, however, that the anonymity of the accused be protected only for a limited period between allegation and charge. In our view, this strikes an appropriate balance between the need to protect potentially innocent suspects from damaging publicity and the wider public interest in retaining free and full reporting of criminal proceedings. (Paragraph 80)