Church of England Board for Social Responsibility
Response to the Consultation Paper
SETTING THE BOUNDARIES: REFORMING THE LAW ON
SEX OFFENCES
1. The terms of reference of the Church of England Board for Social Responsibility require
it ‘to co-ordinate the thought and action of the Church in matters affecting the life of all
in society’. The Board reports to the Archbishops’ Council and, through it, to the
General Synod.
2. The Board warmly welcomes the opportunity to contribute to the sex offences review,
and the report Setting The Boundaries which contains the findings of the review. There
can be no doubt that this review will be of fundamental importance for the long- term
development of the criminal justice system. We have already responded to the review
while it was in progress, and part of our evidence was circulated to other organisations
by the review team during the review. Our response now builds on our earlier
submission, in the light of our study of Setting The Boundaries, and discussions within
the Church of England.
3. We recognise the need for reform of the existing law on sex offences, following the
incorporation of the Human Rights Act has now incorporated the European Convention
on Human Rights into English law. Whilst the effect of the incorporation will emerge
over a period of time, it is likely to hasten a process which was already giving greater
rights to the individual citizen, especially in the area of personal behaviour.
4. We turn therefore at this point to the Christian understanding of sexuality. In recent
decades many theologians have come to appreciate, in dialogue with psychologists, that
the nature of human personality is not one in which sexuality is an extra ‘component’.
Rather a Christian understanding of human nature would see every facet of human life
and personality as being conditioned by sexuality, and that reproduction is only one
element of this. The obligations are equally profound. First, there is the necessity of
preserving sexual integrity by repudiating false notions of sexual relationship. Christian
morality will wish to repudiate much of the exploitative character of our contemporary
culture, and instead it will wish to speak of the intrinsic value of relationships (and in
particular the marriage bond) as the proper setting for sexual expression. However, the
Board would also wish to argue that the nature of sexual integrity can only be worked
out within a specific culture. It is clear that there has been a profound change in English
culture over the last few decades in the relationship between men and women, and it is
in this context that the reform of sexual offences is placed. There is much more
acceptance of relationships outside marriage. If this is the case, then it is it essential that
sexual relationships are based on free and open consent. Equally, and this is the second
obligation, it is important that sexuality is placed within a moral and legal context.
Within this context human sexuality can be fulfilling, and non-exploitative. This review
of sexual offences performs an important role in clarifying what is to be considered
exploitative in our contemporary society, and is therefore to be welcomed.
5. A Christian understanding of sexuality sees sexual relationships as positive, and best
expressed within a marital relationship, in which children can be born and brought up.
However it is no longer the case that those who adopt a different standard for their
behaviour should find themselves outside the protection of the law. There has been in
recent times much more protection given to those who co-habit, and especially those
who are vulnerable within such a relationship, such as children. A Christian view of
jurisprudence would argue that laws should express agreed moral beliefs, while the
Christian Church should offer its own strong and positive morality for its members. It is
not always appropriate to express moral disapproval through legislation. For example, if
adultery is judged as wrong it does not follow that it should be a criminal offence.
Indeed part of the outlook of the Church should be to defend society from over–
legalism. If we go back to the Biblical norms, we find that morality should be given
expression in legislation when harm may be caused to others; the vulnerable, who are
unable to give informed consent, may be at risk; the recipient denies consent; the well
being of the community may be threatened; the natural order is seriously damaged.
5.
Setting The Boundaries also refers to the protection of the vulnerable from abuse and
exploitation. This principle is crucial and will be welcomed by Christians. A Christian
view of the vulnerable would argue that all people are of equal value to God and deserve
respect and dignity. There is within this principle a special concern for the defenceless,
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including children. Those who are unable to protect themselves include people who are
economically and relationally deprived. The protection of children is given a high
priority and we return to this later in our recommendations on child abuse.
6.
After these general considerations, we now turn to a more detailed discussion of the
report, following the recommendations in each chapter.
(a) Rape. We agree that it is impossible to divide the offence of rape into different
categories, and in particular we have doubts that the ‘date rape’ argument would
represent an advance on the existing clear-cut offence of rape. The argument has
been that a lower offence of date rape, with a lower penalty, would result in more
convictions. We accept that the low rate of convictions is a cause for concern, but
we are not aware of any research, which would support the division of the offence
into different degrees of severity. In this conclusion we agree with Setting The
Boundaries, and wish to maintain the present situation where all rape is seen as both
an act of violence, and a violation of the integrity of a person. It is for this reason
that we feel that in the vexed case of the definition of consent, where there is a use
by the defence of honest, if mistaken consent, (the Morgan case of 1974, which
struck out the test of reasonable grounds for the belief in consent) the law should be
as strict as possible. We support the proposal to fetter the honest but mistaken belief
in consent by a test of whether the defendant had taken ‘reasonable steps ... to
ascertain free agreement’. We are not convinced that ‘cultural or other factors’
should influence the definition of what is ‘free agreement’ (see Section 2:13).
(b) Children We accept the Report's proposal to retain the age of consent at 16, and
would have expressed our dissent if there had been any suggestion of lowering the
age. This is because we believe that the protection of children should set 16 as an
age below which this activity is not legal. We also feel that the discussion that no
possibility of consent should exist below the age of 10, which is the proposal in
Australia, and which is discussed in paragraph 3.5.10, is far too low. We are
relieved that the Report ruled this out, and accept as reasonable the proposal in the
Report (Recommendation 18, paragraph 3.5.11) that no child should be able to
consent below the age of 13. In this instance consent is defined as ‘mutual
agreement’. Children can, and do, experiment with patterns of sexual behaviour at a
younger age than in the past, but there should be a strict limit on when this is
deemed beyond the law, since children do not have the maturity to know what they
are agreeing to. We have some questions about Recommendation 20, which
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proposes no time limit on prosecution for the new offence of adult sexual abuse of a
child.
There are issues here of the ability of the accused to disprove allegations,
where witnesses may have died, or the evidence might be uncertain. However the
seriousness of prosecuting child abuse leads us to accept this proposal, despite our
reservations. At the moment the existing offence of unlawful sexual intercourse has
a time limit of twelve months of the offence being charged, but the gravity of the
offence of child abuse persuades us that no time limit is the best option here. The
other option would be not to waive the time limit in primary legislation, but to
establish the importance of the rights of victims to a fair trial, and to allow the
question of the time limit to be decided by precedent. Along with the Children's
Society, we give a strong welcome to the new offence of ‘the persistent sexual
abuse of a child’. This new offence would show the gravity of the offence, without
the difficulty of having to establish particular incidents over a long period.
‘Persistent abuse’ as an offence is also a way of referring to patterns of regular and/
or organised abuse to which the law, as it stands, finds it difficult to relate. In
Paragraph 3.7.6, the report asks whether the exploitation, and pimping, of children
should be brought into a new range of offences. We support this idea, and also feel
that where a number of children are being abused persistently, this should further
heighten the gravity of the offence.
(c) Sexual Abuse Within a Family We are concerned at the proposal to drop the term
‘incest’ since we feel that the suggested alternative, which is ‘familial sexual abuse’
is liable to be seen as weakening the seriousness of the offence. The argument for
replacing the one term with the other is that family arrangements are now more
informal, and temporary, and these are arrangements not covered by the existing
offence of incest. We welcome the great importance which is given to the
maintenance of the family grouping in our society (Paragraphs 5.5.5 and 6), but feel
that the offence of incest could be widened to include these different arrangements
within the family. We strongly support the widening of the offence (however
named) to include adoptive, step and foster parents, as well as adoptive siblings.
(d) Gender and Discrimination We wish to give our support to paragraph 6.2.4. This
paragraph says ‘the criminal law is not an arbiter of private morality but an
expression of what is needed to protect society as a whole. In a tolerant and diverse
society, the law should be based on a public morality that protects the individual
from danger, harm, fear or distress’. We feel that the gender specific aspects of the
existing offences on gross indecency, and consensual same-sex activity, mean that
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they should not be retained in law. However we do not feel that all consensual
activity is thereby justified, and wish to retain the prohibition of sexual behaviour
which results in permanent and lasting injury.
(e) Trafficking and Sexual Exploitation. The Josephine Butler Society has asked the
Board for support on this issue, about which it feels strongly. The Society has
campaigned for many years on this matter, and feels that a non-governmental
organisation (NGO) should be set up to help the victims of trafficking, with a multiagency approach. This suggestion of course goes beyond the remit of the report, but
we mention it to emphasise that the issue of trafficking is a very grave one. We
certainly feel that there should be a trafficking offence, including ‘the knowingly
facilitating transportation’ of a person for commercial sexual exploitation.
(Recommendation 49). We also support the Josephine Butler Society in their
request, alongside many other organisations, for a full-scale review of the law on
prostitution (Paragraph 7.8.1).
(f) Sex Offender Treatment This matter is raised in Chapter Nine as part of the
report's consideration of the care of those who are convicted of sexual offences. We
welcome the report's discussion of this topic, and draw attention to the pioneering
work of the churches in this area, in publishing reports on the reception of sex
offenders (following their release from custody) into congregations under
supervision. In particular we mention the Board's publication Meeting The
Challenge, and the subsequent report from the Methodist Church. We also
commend the joint work between the Home Office and the Society of Friends. This
established a number of pilot schemes, called Circles of Support to mentor sex
offenders, who also remain under supervision by the Probation Service.
The Rt Revd Richard Harries
Bishop of Oxford
27 February 2001
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