It is a pleasure to serve under your chairship, Ms Lewell.
The clause makes a series of important changes to the existing criminal law by amending a number of serious sexual offences in the Sexual Offences Act 2003. Consequently, I am delighted to talk about the clause, to explain what it does and its importance, and to give a little of the interesting history behind the law in the area, which I hope will inform the Committee.
The key legislation, which we will debate throughout the passage of the Bill, is the Sexual Offences Act 2003, which followed a full and extensive consultation entitled, “Setting the Boundaries”, and significantly modernised and strengthened the laws on sexual offences in England and Wales, mainly to provide extra protection for children from sexual abuse and sexual exploitation. The 2003 Act amalgamated and replaced elements of the Sexual Offences Act 1956, the Indecency with Children Act 1960 and the Sex Offenders Act 1997.
The 2003 Act was the first major overhaul of sexual offences legislation for more than a century, and it set out a strong, clear and modern approach to this sensitive area of the law. The Act set clear limits and boundaries about behaviour with children, and reflects what we know today about the patterns and impact of sexual abuse in childhood. It was designed to meet the 21st-century challenges of protecting children, and applies to issues such as internet pornography and grooming children for sexual abuse. The Act also contained measures against abuse by people who work with children, and updated the laws on sexual abuse within families, acknowledging that children can be at risk from within families.
All those measures were designed to provide a clear and effective set of laws to deter and punish abusers, giving the police and the courts the up-to-date offences that they needed to do their job, while ensuring that children have the strongest possible protection under the law. The Act widened the definition of some offences —for example, bringing the non-consensual penile penetration of the mouth within the definition of rape under section 1 of the Act. It created new offences for behaviour that was not previously covered specifically by an offence—for example, the paying for the sexual service of a child and voyeurism. It also extended the age covered by certain offences against children from 16 to 18 and, importantly, gave additional protection to vulnerable adults. The Act provides rightly robust sentences that reflect the seriousness of the offending.
“Setting the Boundaries” was a groundbreaking review, covering some of the most heinous and disturbing areas of offending. The then Home Secretary, Jack Straw, who commissioned the review, stressed that point when he wrote in the review’s foreword:
“Rape and other sexual offences of all kinds are dreadful crimes which deeply affect the lives of victims and their families, and whole communities. Modernising and strengthening the law can make a direct contribution to our aim of creating a safe, just and tolerant society. We give particular priority to the protection of children, and welcome the emphasis the review has given to increasing this protection and also that of vulnerable people.”
He went on to say that he
“set up the review to consider the existing law on sex offences, and to make recommendations for clear and coherent offences that protect individuals, especially children and the more vulnerable, from abuse and exploitation, and enable abusers to be appropriately punished.”
The review’s
“recommendations also had to be fair and non-discriminatory in accordance with the European Convention on Human Rights and the Human Rights Act.”
Today, the Government remain of the view that our priority is to ensure that the public, including society’s most vulnerable, are given the full protection that the law is capable of offering. It is vital that society is protected from the scourge of sexual abuse, manipulation and exploitation in all of its forms. Children, of course, require additional protection from that awful offending. It is vital that we ensure that the criminal law is kept fully up to date in this area to ensure the safety of vulnerable young people.
With regards to children, the review itself acknowledged:
“The criminal law performs a vital role in society by setting standards of acceptable and unacceptable conduct. In making certain types of sexual behaviour criminal, the law provides protection, and supports and maintains the boundaries of acceptable behaviour in the family and community. Children need particular protection in the field of sexual relations because they are physically and emotionally dependent and not yet fully physically or psychologically mature. The law has long held that children are not, and should not, be able to consent to any form of sexual activity in the same way as adults.”
Indeed, the response to the review’s initial invitation to contribute ideas as of January 1999 overwhelmingly supported increasing the level of protection from sexual abuse available to children.
In addition, the review found that:
“The victims of sexual violence and coercion are mainly women. They must be offered protection and redress, and the law must ensure that male victims/survivors are protected too…The law must make special provision for those who are too young or otherwise not able to look after themselves and offer greater protection to children and vulnerable people within the looser structures of modern families.”
That still remains the case. We must continue to ensure that the criminal law keeps up to date with developments, and ensure that police, prosecutors and the courts are fully equipped to deal with this grave offending. We need to offer full protection to victims of such appalling abuse and exploitation.
The review recommended that as a matter of public policy the age of legal consent should remain at 16. However, to provide further protection for younger children, the review recommended that the law:
“setting out specific offences against children should state that below the age of 13 a child cannot effectively consent to sexual activity”.
As a result, the 2003 Act contains a range of offences that target specifically those who sexually abuse children under the age of 13 years. For example, sections 5 to 8 of the 2003 Act provide a range of offences capturing sexual activity with a child under 13, and it is very clear that consent in these offences is irrelevant. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
Those under-13 offences overlap to a very significant extent with the child sex offences at sections 9 to 15 of the 2003 Act, which are designed to protect children under 16. This is to ensure that the criminal law provides the youngest and most vulnerable in society with protection from sexual abuse, and in doing so provides higher maximum sentences for these very serious offences. Under-13 offences are offences of strict liability as to age. The prosecution must prove only two facts: first, that there was intentional sexual activity, and secondly, the age of the complainant at the date of the sexual activity—for example, by a certified copy of a birth certificate, together with evidence of identity.
The principle of strict liability as to age for victims under 13 years old is reflected in the terms of other sexual offences in the 2003 Act. That includes section 11 of the Act, the offence of engaging in sexual activity with a child. That particular offence is one that will be directly amended and affected by provisions proposed in clause 42. While the 2003 Act—and the many amendments and additions to that legislation over the years, rightly championed by Members across this House—provided robust offences to deal with sexual abuse, we are introducing provisions to tighten up the law further to ensure additional protection for those who need it.
Broadly, we are amending and thereby strengthening the current suite of offences that apply where a person engages in sexual activity in the presence of a specified individual, for example child or, in certain circumstances, a person with a mental disorder. Our provisions will amend and toughen up the following offences in the Sexual Offences Act 2003: section 11, “Engaging in sexual activity in presence of child”; section 18, “Abuse of position of trust: sexual activity in presence of child”; section 32, “Engaging in sexual activity in presence of person with mental disorder impeding choice”; section 36, “Engaging in sexual activity in presence, procured by inducement, threat or deception, of person with mental disorder”; and section 40, “Care workers: sexual activity in presence of person with mental disorder”.
For example, it is currently a criminal offence under section 11 of the 2003 Act for a person, “A”, to intentionally engage in sexual activity to gain sexual gratification when a child under the age of 16, “B”, is present or is in a place from which A can be observed, but currently only when A knows or believes that B is aware—or intends that they be aware—that A is engaging in the sexual activity. This offence carries a maximum 10 years’ imprisonment and sexual offender management requirements. Significantly, this offence does not allow a defence of reasonable belief in age if the child is under 13.
The issue of concern here, and with the range of similar offences that I have listed, is the requirement that the defendant should know or believe that the victim is aware of his behaviour, or intend that the victim should be aware of the relevant activity. These requirements may initially appear reasonable. However, they mean this offence would not, for example, capture those who commit sexual activity in the presence of a child for sexual gratification, and who obtain such gratification from the presence of the child—even if the child is apparently unaware of the activity happening in their presence. If the defendant is performing a sexual act in the presence of a child who is asleep and gains sexual gratification from that mere presence, he cannot be charged under the existing section 11 offence; nor, for example, could he be charged for his behaviour if the child was pretending to be asleep—even pretending out of sheer terror—while aware of the appalling behaviour being carried out, if the defendant believed the child to be asleep and therefore unaware of what was going on.
I am sure hon. Members will agree that the criminal law being unable to prosecute such behaviour in this example scenario is unacceptable. The Government strongly believe this flaw must be rectified as a matter of urgency, to ensure that children and other specific groups of the most vulnerable in our society are protected by the criminal law and not denied justice should they become victims of such behaviour.
These amendments are not mere technicalities, nor are they addressing pseudo-philosophical “What if?” scenarios. They are a direct and swift response to concerns expressed by those on the frontline: the police, who have to come face-to-face with the consequences of this disturbing and damaging offending.
We have listened carefully to those on the frontline who are dealing with this awful behaviour. They have provided us with evidence of the difficulties in prosecuting a small number of nevertheless worrying cases, in which it was clear that the perpetrator engaged in the sexual activity because they obtained sexual gratification from a child’s mere presence, but where there was insufficient evidence that the perpetrator knew, believed, or intended that the child was aware of the sexual activity.
These things are happening now. Such offenders are slipping through the net. It may only be in small numbers, but that is irrelevant when dealing with this level of offending and exploitation. This disturbing, unpleasant and damaging behaviour must not go unchecked by the justice system or by the law. It must not go unpunished. Our provisions will ensure that the law is able to make sure that it does not.
We believe it is entirely wrong that, for example, a defendant masturbating while standing next to a child’s bed—to obtain sexual gratification from the child’s presence—cannot be convicted if they successfully argue they did not believe the child was aware of the sexual activity. In such a case we think it is entirely right that the person should be guilty of a criminal offence. We also want to ensure that these behaviours are capable of being prosecuted in future. This is not just to bring offenders to justice but, importantly, to be able to manage these sexual offenders when they are eventually released into the community, and to prevent further offending, where there is specifically potential for further sexual offences against children or vulnerable adults.
It is clear that some people may legitimately engage in sexual activity in the presence of a child—say a couple who live in a one-bedroom flat and by necessity have to sleep with a baby or very young child in the room. Others may have to have a young child in the room for the monitoring of health problems and so forth. We can all think of legitimate examples. I must make it clear that we do not want to criminalise those people who engage in sexual activity in the presence of a child but not for the purposes of obtaining sexual gratification from the child’s presence. In those circumstances, the presence of the child is purely incidental. We have deliberately drafted our provisions to ensure that those people will not be criminalised.
To exclude such behaviour from being captured within the relevant range of offences, we have retained the requirement for a direct link between the purpose of obtaining sexual gratification and the activity occurring in the child’s presence. I hope that that assures hon. Members that our provisions have been carefully crafted to rightly exclude those who may legitimately engage in sexual activity when a child is merely present. The Government’s intention with this clause is to capture the criminally culpable, not the innocent.
Government amendment 12 seems a relatively modest amendment but, again, it is an important one. It adds the offence of sexual activity in the presence of a child at section 11 of the Sexual Offences Act 2003 to schedule 4 of the Modern Slavery Act 2015. The effect of this amendment is to thereby remove the section 11 offence from the ambit of the statutory criminal defence available at section 45 of the Modern Slavery Act 2015. I hope that I have convinced hon. Members of the importance of these provisions and of the necessity for swift action on our part.
Sexual offending, particularly against children and the most vulnerable, is a deeply distressing area of the law, and one that I know affects even legislators when considering reform, as we are today in this Committee. Over the years, the nature of sexual abuse, offending, manipulation and exploitation has changed, and it continues to change. Alongside the changing nature of offending, with which the law must keep up, gaps in the existing law are coming to light, highlighting those cases where serious offenders may be able to slip through the net of even the most well-intentioned and crafted drafting.