Outlawing consent

Jeremy Butler comments on the new Sexual Offences Bill

Commenting on the new Sexual Offences Bill, home office minister Hilary Benn announced that “we need laws for the current century”. Under David Blunkett, however, the home office has not exactly been a model of enlightenment. Proposals on all manner of issues have been as draconian as they were under the infamous Tory home secretary, Michael Howard.

The new bill, making steady progress on its way to becoming enshrined in law, is no different. Blunkett has yet again given the home office motto of building a “safe, just and tolerant society” his own inimitable twist. The bill is insidious in its ramifications. If it becomes law it will criminalise huge swathes of sexual activity. Part of the new law will repeal legislation dating back to the Victorian era; however, what is proposed is fully in keeping with the values of official Victorian society.

The moralising and self-righteous reactionary media have been championing the stance the government has taken. Ever willing to declare themselves the defenders of virtue and innocence, the rightwing press has already dedicated countless column-inches to the moral panic over paedophilia. These self-same, self-appointed guardians of decency have heralded the Sexual Offences Bill as the answer to this problem.

With the government being all too willing to pander to the moral minority, the bill certainly metes out harsh punishment to those found guilty of sexually abusing children. A notable change is that all under 13 will be deemed absolutely incapable of giving consent to sexual activity (even more so than under-16s, it seems, who of course are deemed not to have attained the ‘age of consent’ themselves). Consequently any sexual intercourse with anyone under 13 will be classed as rape, with a maximum term of life imprisonment. The legislation also pays particular attention to ‘grooming’, whereby an adult is committing an offence if they are deemed to be attempting to befriend a child with the intention of luring them into sex.

In announcing these proposals Blunkett declared that the “protection of children and the most vulnerable is a priority for government”. Furthermore, it was stated that the issue of consent was at the core of the draft law.

No one would disagree that everyone deserves protection from abuse or exploitation, be that sexual or otherwise. Indeed revolutionary socialists and communists have been the most consistent proponents of such fundamental rights. Equally consent must be the prerequisite for any relationship - again whether that be a sexual relationship or any other. The rights of an individual in determining what happens to their own body should be paramount.

However, the proposed legislation not only fails to adequately protect children and the vulnerable: it also outlaws certain consensual sexual activities. What the legislation does do is allow the government to intrude on people’s private lives, make sweeping judgements as to what is acceptable and what is not, and criminalising those who choose to engage in acts it disapproves of. In fact the Sexual Offences Bill denies the freedoms it purportedly exists to protect.

While consent must be freely given, just as important is that such consent be informed; that any person entering into a relationship should understand what it entails. The government, however, has deemed that certain people in our society are incapable of either understanding or consenting - and not just those below a certain age.

For example, the Sexual Offences Bill enshrines in law the ‘fact’ that people with learning disabilities or mental illness are unable to give consent. As a consequence the sexual partner of someone with a learning disability or mental health issues are having non-consensual sex, and are therefore committing a criminal offence. The government has been quick to protest that this proposal is intended to protect vulnerable adults from sexual exploitation. This is not what the bill says, however. What it does say is that if one partner knows or could “reasonably be expected to know” that the other has a learning disability or a mental “disorder,” and that the other partner lacks “sufficient understanding of the nature … or consequences”, then the former is committing an offence.

Sex and sexuality help define us as individuals. But clearly people with learning disability or mental illness should not be regarded as individuals at all. What the legislation does is tell such people that they are incapable of making a decision about their lives and their bodies. This legislation is crass, misinformed, and frankly what you might have expected in the days of institutions for the mentally ‘enfeebled.’ Yes, Mr Benn, this is the 21st century. People with learning disability or a mental illness are capable of living independent and fulfilling lives.

Furthermore it is mind-boggling that the two categories are grouped together in so arbitrary a fashion without differentiation. It is estimated that one third of the population will suffer from some form of mental health problem during their lives, mainly depression. Does this then mean that their sexual partners are committing an offence? As for learning disability, again, this covers such a wide spectrum that it is meaningless to pass such a judgement. Dyslexia is a learning disability. Are dyslexics incapable of giving informed consent? Should others be deemed incapable of making up their own minds purely because of the nature of their disability?

What the proposed legislation fails to take into account is that people with learning disability or mental illness are sexual human beings. They have drives and impulses just as much as anyone else. People who have severe learning disability or mental health issues are still equal sexual citizens.

The Sexual Offences Bill, however, denies this by including the offence of incitement. It is an offence for care workers to ‘incite’ or ‘cause’ someone in their care to engage in sexual activity. Care workers often play a vital role in educating their clients as to safe and responsible sexual activity, enabling them to go on to have fulfilling and reciprocal sexual relationships. David Congdon, the head of public affairs for the learning disability charity Mencap, warns that the law may lead to care workers being worried about breaking the law, and as a consequence could hamper the task of sexual education.

Thus the bill, with its ambiguous use of language and damning judgement on people’s cognitive abilities, could well lead to increased vulnerability - care workers need to be able to discuss sex and sexuality openly with their clients in order to enable them to understand the meaning and consequences of their own actions and the actions of others towards them, not just pretend they have no sexuality.

This last issue is perhaps the most dangerous inclusion. Not only is it an offence to ‘incite’ someone to engage in sexual activity if that person has learning disability or mental illness: it also applies if that person is under 16. What does ‘incitement’ mean? Again government spokespersons have insisted that the law would only apply to those who seek to exploit young people for their own gain. Such assurances do not engender much confidence. Remember Section 28? The homophobic statute enacted by the last Tory administration prevented the “promotion” of homosexuality in school sex education lessons. Consequently teachers were wary of discussing homosexuality for fear that they may be deemed to be promoting it.

Already publishers of ‘agony aunt’ columns and the advice helpline Childline have raised concerns that this clause may prevent them offering advice to under 16s. There is an exemption allowing for advice to be given about sexually transmitted viruses and contraception, but the government have rejected pleas for an exemption on giving emotional advice.

As sexual beings we know that sex is about far more than getting pregnant or contracting a virus. Sex should be an enjoyable activity between consenting people. This legislation denies that under-16s need to really know about sex. The fact of the matter is that under-16s do have sex. Britain has one of the highest incidence rates of teenage pregnancies in Europe and, as announced in a government report this week, infection rates of sexually transmitted viruses amongst teenagers are on the increase.

This would indicate that young people need not only to know more about the purely biological side: they also need to be able to make informed decisions as to whether they are emotionally prepared. They need to be able to understand the significance and meaning of sex. For the government simply to say that underage sex is illegal, and for those under 13 non-consensual, denies the social reality. Young people are sexual beings too. Young people have sex. They need to be able to have frank and open discussions about sex in order to inform their decisions.

If it becomes law the new Sexual Offences Bill will criminalise people for having sex, or for helping to educate others about sex. This bill purports to protect people from abuse and exploitation, but the greatest protection from abuse and exploitation is knowledge. In order to be able to give consent people need to be informed, to be able to make choices. Yet the proposed law denies people who are at risk access to knowledge.

The issue of consent needs to be at the very heart of any legislation governing sexual behaviour. It must take precedence over arbitrary and sweeping judgements about the cognitive capacity or level of maturity of entire sections within society. People mature at different rates; people have different levels of comprehension. What any legislation on sexual behaviour should do is respect this, and respect people’s rights to make their own choices. Greater openness about sex should be encouraged, enabling people access to the information that they need to be able to make informed decisions.

At present the arbitrary nature of the law as regards consent means that the day before a young person’s 16th birthday they are deemed to be too immature for sex, and the following day they are suddenly mature enough. The responsible action to take would be dispose of arbitrary and sweeping generalisations, such as the age of consent, and judgements about mental faculty, and instead enshrine the right of each individual to be able to choose what happens to their own bodies.

Everyone should be entitled to the right of personal self-determination, and they can be helped to make informed decisions by encouraging a more open and honest attitude towards sex. All people should be able to feel that they are in control of their own bodies and are able to make decisions about what is acceptable to them and what is not. Such an attitude must form the basis upon which vulnerable members of society can be genuinely protected from abuse.