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RESEARCH PAPER 03/62 The Sexual Offences Bill 10 JULY 2003 [HL] Bill 128 2002-03 The Sexual Offences Bill 2002-03 is the culmination of two major reviews, on sexual offences and the management of sex offenders. The policy background to the Bill is discussed in Library Research Paper 03/61. That paper provides background to these reviews, outlining current legislation and areas where the Government have identified a need for change. It also gives an outline of the Bill as presented in the House of Lords, and discusses the available statistical information on sexual offences and sex offenders. This paper looks at the Bill as introduced in the House of Commons on 18 June 2003. It covers some of the more controversial issues such as consent in rape cases, child protection and protection of vulnerable people. Topics which were the subject of major Government amendments, including exposure and sexual activity in public toilets are also discussed. The Bill is due to be debated on second reading in the House of Commons on 15 July 2003. Arabella Thorp HOME AFFAIRS SECTION HOUSE OF COMMONS LIBRARY Recent Library Research Papers include: 03/46 Scottish Parliament Elections: 1 May 2003 14.05.03 03/47 Unemployment by Constituency, April 2003 14.05.03 03/48 Enlargement and the European Union (Accessions) Bill [Bill 98 of 2002-03] 19.05.03 03/49 Whither the Civil Service? 20.05.03 03/50 The Conflict in Iraq 23.05.03 03/51 Iraq: law of occupation 02.06.03 03/52 The Courts Bill [HL] [Bill 112 of 2002-03] 05.06.03 03/53 The euro: background to the five economic tests 04.06.03 03/54 Employment Equality Regulations: Religion and Sexual Orientation 06.06.03 03/55 Unemployment by Constituency, May 2003 11.06.03 03/56 The Convention on the Future of Europe: institutional reform 12.06.03 03/57 Economic Indicators [includes article: The RPI to HICP – a new inflation 01.07.03 measure for the UK] 03/58 The draft Treaty establishing a European Constitution: Parts II and III 07.07.03 03/59 UK Election Statistics: 1945-2003 07.07.03 03/60 The draft Treaty establishing a European Constitution: technical and 07.07.03 constitutional issues in Parts I and IV Research Papers are available as PDF files: • to members of the general public on the Parliamentary web site, URL: http://www.parliament.uk • within Parliament to users of the Parliamentary Intranet, URL: http://hcl1.hclibrary.parliament.uk Library Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. Any comments on Research Papers should be sent to the Research Publications Officer, Room 407, 1 Derby Gate, London, SW1A 2DG or e-mailed to [email protected] ISSN 1368-8456 Summary of main points The Sexual Offences Bill 2002-03 aims to modernise the law on sexual offences and to deter and manage sex offenders. Key themes are: • protection of children and other vulnerable people • widening the law on rape and changing the permissible defences in relation to consent • making the law more gender-neutral, repealing, for example, offences applying specifically to gay men • tightening notification requirements on sex offenders and widening registration to those convicted overseas The need for change was highlighted by two major public consultations. A review of sex offences was set up by the Government in 1999, the independent review group producing a consultation paper, Setting the Boundaries, in July 2000. A public consultation closed in March 2001. In addition the Government carried out a Review Part 1 of the Sex Offenders Act 1997 and proposals were published for public consultation by Home Office in July 2001. During the period of this review ongoing changes were made to the criminal justice system and legislation These two reviews fed into a white paper, Protecting the Public (Cm 5668), published in November 2002. Following this the Sexual Offences Bill was introduced in the House of Lords on 29 January 2003 and completed its passage through the Lords on 17 June 2003. Part 1 of the Bill proposes a comprehensive reform of the law on sex offences in England and Wales. It would create several new offences, such as ‘meeting a child following sexual grooming’ and ‘causing or inciting a child to engage in sexual activity’, and redefine many existing ones including rape and sexual assault. Part 2 of the Bill would restate and extend existing provisions on registration of sex offenders and establish a range of new preventative civil orders, most of which would apply throughout the United Kingdom. For a clause-by-clause analysis of the Bill, see the Government’s explanatory notes to the Bill.1 The Bill was amended substantially during its passage through the House of Lords. Some of the main areas of controversy in the House of Lords included: 1 Bill 128-EN • the definition of rape; • issues of consent; • anonymity for defendants; • how to treat children who sexually abuse; • protection for people giving sex education and advice; • sexual activity in public; • exposure; and • sentencing. The Government made substantial amendments in the House of Lords to the way that consent would be determined in rape and sexual assault cases. It also redefined ‘exposure’ to avoid criminalising naturists, and made a number of changes to the child sex offences and sentencing provisions. Two Government defeats in the House of Lords were: the introduction of a new specific offence of ‘sexual activity in a public lavatory’ following the Government’s withdrawal of a proposed new offence of ‘sexual activity in public’; and the addition of a new clause giving the defendant in rape and sexual assault cases the same right to anonymity as is enjoyed by the complainant. The Bill was considered by three Parliamentary Select Committees: the House of Lords Select Committee on Delegated Powers and Regulatory Reform; the Joint Committee on Human Rights; and the House of Commons Home Affairs Committee. CONTENTS The Sexual Offences Bill [HL] 1 I Introduction 7 II Overview of the Bill 7 III Lords second reading debate 9 IV Rape and sexual assault 14 A. Definition of rape 14 B. Acquaintance rape 15 C. Consent 16 D. Definition of ‘sexual’ 22 E. Anonymity 22 V Child protection 24 A. Offences against child under 13 24 B. Children who sexually abuse 26 C. Defence of mistake of age 27 D. Defence for providing advice and treatment to children 27 E. Sexual grooming 28 F. Abuse of position of trust 29 G. Child family members 33 H. Child prostitution and pornography 35 VI Vulnerable people 36 A. Consent 37 B. Physical as well as mental incapacity? 39 C. Care workers 40 D. Trials and sentencing 41 VII Adult prostitution 42 VIII Trafficking 43 IX Offences in public 45 A. Sexual activity in public 45 B. Exposure 48 C. Voyeurism 48 X Sentencing 49 XI Sex offenders 52 A. Young offenders 53 B. Homosexual offences 54 C. Sex tourism 54 D. Risk of Sexual Harm Orders 57 XII Northern Ireland 58 XIII Scotland 58 A. General 58 B. Jurisdiction 59 C. Sex offenders 60 XIV Review of operation of the Act 60 XV Select Committee Reports 61 RESEARCH PAPER 03/62 I Introduction The Government’s overhaul of the law on sexual offences was announced in 1999 and encompassed a number of reviews and consultations. These set out many of the problems and inconsistencies in the existing law and made proposals for a comprehensive new set of offences for England and Wales, as well as suggesting changes to the way sex offenders are managed throughout the UK. The end result was the publication of the Sexual Offences Bill in the House of Lords on 28 January 2003. The Sexual Offences Bill has now completed its passage through the House of Lords, where it was amended substantially, both by the Government and following Government defeats. The Bill was introduced in the House of Commons as Bill 128 of 2002-03 on 18 June 2003. The Government’s Explanatory Notes to the Bill provide an overview of the Bill as well as a clause-by-clause commentary.2 Further information is available on the Sexual Offences Bill page of the Home Office website.3 This Paper looks at some of the main issues in the Bill as introduced in the House of Commons, and summarises the House of Lords debates. It includes a discussion of how the Bill would affect Northern Ireland and Scotland. A very brief outline of existing sex offences law in England and Wales is given as an appendix, and a final appendix provides a selective list of further reading. Its companion paper, Library Research Paper 03/61, provides an overview of the policy debate, including the criminal justice statistics that inform it. The Government ministers responsible for the Sexual Offences Bill in the House of Lords were Lord Falconer of Thoroton (up to and including Report), Lord Bassam of Brighton, and Baroness Scotland of Asthal (Third Reading only). The main Opposition spokespeople were Baroness Noakes and Baroness Blatch; and Lord Thomas of Gresford and Baroness Walmsey for the Liberal Democrats. II Overview of the Bill A Home Office press release provides an overview of the Sexual Offences Bill: Protection for children and the most vulnerable is at the heart of the Sexual Offences Bill, published today. It is the most radical overhaul of sex offences legislation for 50 years and aims to provide a clear, coherent and effective set of laws that will increase protection, enable the appropriate punishment of abusers and ensure the law is fair and non-discriminatory.
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