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Lord Thomas of Gresford: The Committee will recall my amendments to the earlier clauses in the Bill when I objected to the use of the bare word "rape" for purely practical reasons that I hope the noble Baroness, Lady Blatch, will understand. It is my view, from experience, that one of the reasons for low conviction rates for rape is the use of that word. Juries find it a word that connotes something very serious, that could lead to life imprisonment, while they are dealing with a degree of human relationships that may not be serious. Consequently, they do not convict.

When it comes to incest, the noble Baroness paints a picture of a horrible, disgusting crime—and, indeed, it can be—where a father manipulates his young children and has sexual intercourse with them. My experience of incest is that it occurs between very inadequate people. For example, it occurs between children or young adults who have never had any moral code taught them and who do not understand the stigma which is attached to relationships between siblings in that way. That is one example. Another quite frequent example is where, for some reason, the mother of the family is incapacitated, perhaps by illness or something of that nature, and the eldest daughter develops a relationship almost of the wife and mother in that family and performs the functions of both looking after the family home and also being a partner to the husband. They are the kinds of cases which come to court and to which the word "incest" is attached.

There are all kinds of degrees of seriousness of behaviour encapsulated in the human condition. It is quite right for the Government to get away from the old phrases which have connotations around them. The Government have taken away buggery, bestiality and incest. It is my view that the Bill would be greatly improved if the Government took away the word "rape" and recognised that there are very serious cases of rape and less serious cases.

12.30 p.m.

Lord Monson: I would like to be able to support the noble Baroness, Lady Blatch, this time, but I cannot do so. She was kind enough to refer to my Second Reading speech in which, among other things, I suggested that it was a shame that the Government seemed determined to strike the word "incest" from the statute book. It is an ancient English word found in identical or near-identical form in a number of other European languages. More importantly, it is well understood by the public at large.

I submit that rightly or wrongly the public at large associate incest with penetration of some sort and not mere touching. I believe that they would be confused if it were extended to cover forms of sexual activity other than the most serious. Although I am strongly in favour of retaining the word "incest" for the most serious forms of sexual activity between family members, I do not believe that it would be quite right to extend it to mere touching.

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Lord Falconer of Thoroton: The noble Baroness, Lady Blatch, rightly describes the effect of the new provisions in the clause and the way in which it extends what had been the previous position as regards family sexual relationships. It expands their number and the sorts of conduct which are covered. It is based on the proposition that the family unit is a place where children should be able to feel safe and protected. However, because of the balance of power within the family unit and the close and trusting relationships which exist within it, the family creates opportunity for exploitation and abuse and within such a unit that can occur between people who are not simply blood relations.

In the light of that change we believe that it is wholly inappropriate to continue to use the word "incest". We believe that it goes further. There is a very short passage in Setting the Boundaries 2000 which I should like to read. It states:

    "After careful consideration, we decided that the word incest, although well understood, was perhaps no longer the right one to use in the context of delivering protection in the family. It is generally understood as an offence of blood relations, and carries a very heavy burden, not only for the offender but also for the victim/survivor who can be seen as complicit. It seems inappropriate for the informal and temporary family arrangements that can be the cause of particular concern, and are well outside the present law of incest".

We believe that is broadly right and that the time has come no longer to use the word. In the light of what I have said I invite the noble Baroness to withdraw her amendment.

Baroness Blatch: I believe that I dealt with the final point which the noble and learned Lord made about deeming complicity. The new terminology does not resolve that matter, which I dealt with in some detail.

The noble Lord, Lord Thomas of Gresford, was consistent in that he was concerned about the word "rape" as well. Whatever the activity is, if the degree of incest is sufficient to fall within the clauses in the early part of the Bill, then it is serious. It is certainly serious for the child. It links with the point made by the noble Lord, Lord Monson, as regards touching.

I have the same reservations as the noble Lord about that. For a long time I have supported the very difficult situation of a step-parent who has become a new member of a family with young children. It has always been my view that all members of most families touch their children and each other all the time and very often in a very affectionate way. It certainly happens in my family where one cuddles up on the sofa, watches television, reads stories and where children crawl into bed with their parents and even with step-parents. But we are not talking about such matters.

If it comes to the attention of the prosecution services that there is sufficient evidence that the degree of touching is such that it falls under the clauses in the Bill, then it is very serious for the child. There needs to be some protection in that regard. I believe that there is a commonality of understanding about the word "incest" and any child or member of a family who is violated by another member of the family, particularly children who are violated by parents and/or uncles and

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aunts. The evidence shows that there are very common occurrences of the uncle abusing the child. I believe that "incest" is the appropriate word. I am sorry that my amendment has not received support throughout the Chamber. For the moment I shall reflect on what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 173:

    Page 13, line 21, after first "he" insert "reasonably"

The noble Lord said: When I tabled this amendment my purpose was to try to tidy up Clause 28 and to try to deal with the shifting burdens of proof that are contained within subsection (2). After the facts have been established under subsection (1) the burden shifted to the defendant to prove that he believed that the other person was 18 or over and then back to the prosecution to establish that the belief was unreasonable. We had discussion about a very similar matter at an earlier stage of the Committee.

Looking at the matter again, I am even more concerned about Clauses 28 and 29 when comparing them with Clauses 9 and 11, which we have already debated. Sexual activity with a child family member is concerned with a person who is under 18. If the person were under 16, presumably Clause 9 would apply. There would be no question of consent being given by the child under 16. Again, we are really dealing with 16 to 18-year olds where the other party to the sexual activity may very well consent to what is taking place, but that does not stop it from being an offence.

I do not understand why in Clause 9 it is for the prosecution to prove that A does not reasonably believe that B is 16 or over, but in Clause 28 the burden of proof shifts twice for the defendant to prove that he believed the other person was 18 or over and, as I have already said, for the prosecution to try to rebut that.

Why must there be a change of that nature? If one compares Clause 29 with Clause 11, we see that the same thing happens. In Clause 11, it is for the prosecution to prove that,

    "B is under 16 and A does not reasonably believe that B is 16 or over".

In Clause 29, the burden of proof changes to the defendant. It is for the defendant to prove,

    "that he believed that the other person was 18 or over".

I want an explanation for that.

It is not sufficient to say, as the noble and learned Lord said when we earlier discussed the issue, that my amendment, which would have made it,

    "reasonably believed that the other person was 18 or over",

in subsection (2), would offend the European convention. I have looked at the European convention, and I see nothing in that or in case law that supports that explanation.

The other matter that concerns me is the level of sentencing. In subsection (5), for a person over 18 the maximum sentence is 14 years. That accords with

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Clause 9, when a person is under 16. But under Clause 28(6), unless subsection (5) applies—that is, unless the person is over 18—

    "a person guilty of an offence under this section"—

in other words, a person under 18—

    "is liable . . . on summary conviction . . . to . . . 6 months",


    "on conviction on indictment, to . . . 5 years".

The position that that postulates is that the other family member who is the defendant is under 18, dealing with someone who is between 16 and 18. The defendant could be 12, 13 or 14—in other words, he could be younger than the person that the clause aims to protect. That person, under subsection (6), seems to be open to conviction on indictment of up to five years. I do not understand the thinking behind that, but perhaps I am muddled and have not understood it fully.

One may compare that provision with the clauses that we have discussed—Clauses 68 and 69, which deal with sex with an adult relative—and consider the level of sentencing. In Clauses 68 and 69, the sentence is six months or two years, whether one is the person doing the penetration or the person receiving the penetration. In Clause 28, which deals with sexual activity with a child family member, there is a sentence of 14 years and, for a person under 18, five years. Why are there such discrepancies? Why do sexual assault, with which Clause 28 deals, or inciting sexual assault, with which Clause 29 deals, carry such enormous sentences of imprisonment as compared with what the noble Baroness, Lady Blatch, would call the incest provisions in Clauses 68 and 69? A lot of explaining needs to be done about the two clauses, and I look forward to hearing from the Minister. I beg to move.

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