Blunkett under the blanket

The UK government’s new White Paper on sexual offences, Protecting the Public, claims that present sexual offences law is ‘archaic, incoherent and discriminatory’ (1). It aims to bring sexual offences legislation up to date with modern mores, and to close loopholes in the law.

The White Paper certainly suggests some sensible changes – like removing from the statute books the nineteenth-century homosexual offences of buggery, gross indecency and soliciting by men. However, it replaces these out-of-date laws with a vast bureaucracy of new sexual offences, indicating that New Labour has an obsession with sexual behaviour that more than rivals that of its Victorian forbears.

The government seems keen to have every sexual scenario covered by specific legislation. So it worries that existing legislation ‘does not expressly provide for the prosecution of someone who forces another person to perform sexual or indecent acts, either on themselves or the offender’, and suggests a new offence: ‘Causing another person to perform an indecent act without consent.’ (2)

The White Paper suggests a new offence called ‘Abuse of position of trust’, to cover sexual relations between those aged 18 or older with those aged 18 or under in ‘educational establishments and various residential settings’ (3). It also proposes three new offences to cover relations with people with learning disabilities or other kinds of mental disorders: ‘Sexual activity with a person who did not, by reason of a learning disability or mental disorder at that time, have the capacity to consent’; ‘Obtaining sexual activity by inducement, threat or deception with a person who has a learning disability or mental disorder’; and ‘Break of relationship of care’.

There will also be offences to cover ‘Indecent exposure’, ‘Sexual behaviour in a public place’, ‘Voyeurism’, and ‘Sexual interference with human remains’ (on this, the report notes that ‘there is no indication that [sexual interference with human remains] is anything but extremely rare’, but ‘we believe that this behaviour is so deviant as to warrant the intervention of the criminal law’ (4)).

Why such an attempt to demarcate every aspect of sexual life, and to legislate for every possible incident of abuse and deviancy? Many of these new offences would have been covered under existing legislation – ‘Indecent exposure’, for example, could be charged under section 4 of the Vagrancy Act of 1824 (5). But no, this is simply not good enough: indecent exposure must have its own offence. And even if sexual interference with human remains is so rare as to be insignificant, there really must be some kind of formal proscription.

Behind this raft of legislation on sexual offences lies an unhealthy obsession with individuals’ private lives. The report suggests a new raft of sexual offences, which means the law stepping into very murky areas of personal behaviour.

So here are new regulations that put the onus on the defendant in sexual offences cases to check that the other person consented – limiting the man’s ability to claim that he ‘honestly believed’ the woman to have consented to sex in rape cases, for example. If the woman had been under the influence of drink or drugs at the time of sex, then doubt could be cast upon her ability to give consent.

This new legislation means that courts will be put in the position of deciding what kinds of sexual behaviour are and are not acceptable. The report says that the defendant should take ‘reasonable action in the circumstances to ensure that the other person was willing to take part in the sexual acts’ – and then says that ‘reasonable’ would be defined in terms of ‘what an objective third party would think in the circumstances’ (6).

The point is that objective third parties do not exist in sexual relationships (and when they do, they could be tried under the new offence of Voyeurism). By blurring the notion of consent in law, the state is setting itself up as judge and jury in the bedroom.

The White Paper also suggests new offences that approach thought crimes. There is a suggestion to target the committing of illegal acts with the clear intention to commit a sex offence, with two new offences: ‘Trespass with intent to commit a sex offence’ and ‘Committing a criminal offence with intent to commit a sexual offence’ (7). How courts will judge an individual’s intent to commit a sexual offence while trespassing is not explained (is it in the way they walk?).

There is also the introduction of new laws against ‘sexual grooming’, where an adult ‘undertakes a course of conduct with a child leading to a meeting where the adult intends to engage in sexual activity with the child’ (8). This law is a response to recent internet paedophile scandals popularised by the tabloid press, where paedophiles have apparently used children’s chatrooms to make contact with and arrange to meet a child – but the legislation could be more broadly applied to other situations where an adult contrives to meet up with a child. Again, this raises the problem of proving intent.

The ‘grooming’ charge also raises the issue that thinking about sexual acts is not the same as committing them. If an adult had sexual fantasies about a child and arranged to meet up with them, yet did not act upon these fantasies, have they committed a criminal offence?

There is no explosion of sex crime in Britain, and no mass demands from victims of ‘Voyeurism’ or ‘Indecent exposure’ for a raft of new legislation.

Instead, this new White Paper indicates an indecent concern on the part of government to become more involved in the nation’s sexual behaviour – not as a participant, but as a ‘reasonable’, ‘objective third party’.

Read on:

spiked-issue: Love and sex

(1) See Protecting the Public, Home Office 2002, p9

(2) See Protecting the Public, Home Office 2002, p22

(3) See Protecting the Public, Home Office 2002, p26

(4) See Protecting the Public, Home Office 2002, p33

(5) See Protecting the Public, Home Office 2002, p32

(6) See Protecting the Public, Home Office 2002, p17

(7) See Protecting the Public, Home Office 2002, p23

(8) See Protecting the Public, Home Office 2002, p25