NCCL Documentary Evidence 2 – Sexual Offences – Evidence to the Criminal Law Revision Committee 1976

Below is the text of all sections of Sexual Offences: Evidence to the Criminal Law Revision Committee. NCCL Report no. 13 (February 1976, revised edition March 1976) which are relevant to issues concerning PIE, to whom they had become affiliated by this time. Some of this has been quoted in various newspaper articles, but the complete text should make clear the extent to which NCCL’s recommendations were being influenced by PIE-style thinking (though some of it is perfectly reasonable). I will provide proper commentary, together with other NCCL-related information, at a later date.

Differences between the February and March 1976 versions of the report, both of which I have looked at, are tiny and cosmetic.

Introduction to the second edition

The publication of NCCL’s evidence on the law relating to sexual offences has caused considerable controversy. Unfortunately, the publicity given to the proposals to lower the ages of consent did not generally make clear the distinction which we made between an area of private morality, where the individual may make his or her own choice, and the area where the criminal law should intervene. Some commentators preferred to assert the innocence of ‘childhood’, ignoring the fact that a number of people below the age of 16 do choose to have sexual intercourse. Others defended the existing law on heterosexual activity on the ground that the law is a defence of the girl who wishes to say ‘no’. There is no evidence to suggest that the existing law does protect girls who wish to avoid intercourse: NCCL’s case is that such protection, if it does exist, should not be given at the expense of making criminal sexual activity between partners who consent.

Timely illustration of how objectionable the use of the criminal law is in this area was given this month when Justice Melford Stevenson criticised the police for charging an 18-year-old man with unlawful sexual intercourse with his 15-year-old girlfriend – whose consent, according to the judge, was not in doubt. The law is, of course, very rarely enforced, and it is not clear whether those who uphold its existence wish to see such prosecutions brought more frequently.

There has been considerable criticism of NCCL’s proposals on the ages of consent some based on a misunderstanding of our reasoning. But the proposals have also attracted support from those who share our conviction that the criminal law should not interfere with private, consenting sexual activity, and from a number of young people, and those working with them, who welcome the recognition that they are capable of making their own choice. This report has already stimulated public discussion about major issues of law and morality, and we welcome continuing debate on the proposals which we have made.

March 1976

Introduction

One of the most empty opinions frequently given about our society is that it is a ‘permissive society’. The term is rarely defined. It is true that certain barriers to sexual activity have been lowered, but the high threshold of guilt that affects many people often distorts relationships and behaviour and makes quite legitimate sexual freedoms beyond the reach of many people. The law still operates harshly to discourage certain sexual activities, even where no harm to others is identifiable. It would be equally true to say, as Anthony Grey of the Sexual Law Reform Society recently did, that ours is a repressive society. It is quite usual for advocates of any sexual freedom to be regarded as if they were calling for sexual licence. The test of any freedom – and there is no reason to exclude sexuality from this rule – is its effect on the legitimate freedoms of others.

Although in the past it was accepted that ecclesiastical laws and, subsequently, civil laws could properly enforce a moral code, in more recent times the feeling has been growing that Acts of Parliament should not, and cannot, control the moral side of our lives. It was put forcibly in a perspicacious sentence of the Wolfenden Report (1957) : ‘Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.

The NCCL believes that the main function of the law on sexual behaviour should be protection; the only reason for making a sexual activity illegal is because it may result in other people being harmed. This rules out all laws concerned solely with morality. It also rules out paternalistic laws which attempt to stop an individual from harming himself; it is quite difficult in reality, to harm oneself by having too much sex.

There are, in NCCL’s opinion, two areas where a protective law may properly restrict sexual behaviour:

i) Where one or more parties to a sexual act have not consented;
ii) Where sexual behaviour results in demonstrable suffering or offence to other people.

Age of Consent

True consent has not been obtained unless all the participants have freely entered into the activity. The law must prevent individuals from forcing their attentions upon others by using violence, threats, fraud, blackmail or other improper pressures, such as taking unfair advantage of those under one’s authority or those who are handicapped in some way. Most people would agree that the law must intervene in such circumstances. The problem of consent becomes controversial when one has to decide at what age a child is responsible for his/her actions and is therefore capable of giving consent.

Many people hold strong opinions about the age of consent, but there is very little real evidence that can be used to support any one particular age. It is possible to use very similar arguments to support the age of 12, 13, 14, or 15. The choice of any particular age is quite arbitrary; this may seem inevitable to lawmakers, but one should not forget that this appears ridiculous to young people who are told sexual intercourse is illegal one day and legal the following day.

Some doctors support the present age of consent in the belief that the cervix is more liable to damage by sexual intercourse at 14 than at 16 but this is disputed by other medical experts and the evidence either way is far from convincing. The main arguments in favour of a high age of consent are psychological and emotional. It is said that adolescents may be physically capable of exercising their sexuality, but they are not mentally prepared for this experience. People who put forward this argument are really thinking about emotional commitments more than physical acts, but there is no law that can, or should, control romantic attachments.

It is also said that adolescents cannot have a very realistic idea of the possible consequences of their sexual activities and that giving expression to their desires could lead to a pregnancy with unfortunate consequences for the offspring, as well as for the adolescents, their parents and the community. Against this it can be argued that there are now fairly efficient ways of avoiding an unwanted pregnancy, if adolescents can be persuaded to make use of them. But many of these young people, who need contraceptives and advice about sexual matters, may be reluctant to ask for help when they know that they are breaking the law by engaging in sexual activities below the age of consent. Counsellors, doctors and others who wish to help adolescents are also put in an awkward position because in theory, at least, they are aiding and abetting an offence. Furthermore, the law making heterosexual sexual intercourse illegal under 16 is often broken and rarely enforced. (This argument, about prevention of pregnancy, does not of course apply to sexual activity between persons of the same sex.)

The law also takes no account of the fact that the age of puberty is much lower now than when it was decided to make 16 the age of consent. There is no real biological justification for any particular age. Less than a hundred years ago, the age of consent was 13. It was changed in 1885 following a scandal concerning child prostitution. Most girls have reached puberty by the age of 12 and most boys intend to have early sexual experience, whatever the law may be. Contemporary psychological research has shown that children have sexual feelings and desires from a very early age. As the age of puberty covers a wide range, any age of consent will be too high for some and too low for others. In any case, it is not sensible to choose one age when suddenly boys and girls are permitted to engage in heterosexual activities without fear of legal sanction. The ability of teenagers to make suitable judgements and control their impulses depends upon upbringing and education, not upon the law of the land.

The severity of the present laws affects relationships that cross the age of consent even when they are, in the ordinary sense, mutual. In the public mind, the legal term ‘assault’ that is applied in these cases probably suggests brief, violent encounters. In fact, the law, as well as prohibiting such undesirable sexual acts, may bring to a crushing end caring and mutual relationships of long standing, and some where the partners are close in age. Although in these cases, the ‘harm’ that the law is meant to discourage evades scientific discovery. The harm that flows from the law’s operation is all too evident.

Although it is both logical, and consistent with modern knowledge about child development, to suggest that the age of consent should be abolished, we fear that, given the present state of public attitudes on this topic, it will not be politically possible to abolish the age of consent. Accordingly, we propose a series of ages of consent, which would have the effect of reducing the harmful effects of the present laws.

i) A person aged 14 or over should be legally capable of giving consent.
ii) A person aged under 10 should be presumed legally incapable of giving consent.
iii) Where both partners are aged 10 or over, but under 14, a consenting sexual act should not be an offence.
iv) Where one partner is aged 10 or over, but under 14, the law should presume that consent was not present, unless it is demonstrated that it was genuinely given and the child understood the nature of the act.
v) As the age of consent is arbitrary, we propose an overlap of two years on either side of 14, so that, where the participants are aged 12 or over, but under 16, a consenting sexual act will not be an offence.
vi) The exception provided in S 6 of the Sexual Offences Act 1956 should be retained, with the amendment that a person be not guilty of unlawful sexual acts with a child under 14 if he is under the age of 21 (not 24, as at present), has not previously been charged with alike offence, and reasonably believes the other person to be aged 14 or over.

We are particularly concerned that the present review of the law should not introduce new restrictions where none exist at present. The ages of consent would therefore continue to apply only to girls participating in heterosexual acts, and to boys participating in homosexual acts.

[….]

Homosexuality

In the second paragraph of this memorandum, the blunt words of the Wolfenden Committee were quoted to support the proposition that people’s private morality is not the business of the law. That statement was made in that part of the Wolfenden Report which was specifically concerned with homosexuality. There is no logical or sensible reason why homosexuality should be treated differently by the law from heterosexuality. But the law discriminates against homosexuals – and mainly male homosexuals – in the following ways:

i) Homosexual acts between consenting adults in private, which became lawful in England and Wales after the Sexual Offences Act 1967, are still illegal in Scotland and Northern Ireland.
ii) Homosexual acts are still illegal in the Armed Forces and aboard UK Merchant ships.
iii) The age of consent for female heterosexuals is 16, but for male homosexuals is 21.
iv) The penalty for indecent assault on a male is a maximum of ten years, but the maximum for indecent assault on a female is two years.
v) It is illegal for a man aged over 21, to have sexual relationships with a man under 21, even in the reasonable belief that the younger man was over 21 and when the two men were close in age.
vi) The definition of privacy is more restrictive for homosexual acts.
vii) It remains an offence for a third party to procure a homosexual act, even though such an act is now quite legal. (This especially includes the publication of contact advertisements).
viii) It is an offence for a man persistently to solicit another man for an immoral purpose, but not for a man persistently to solicit a woman.
ix) Local bye-laws are used against homosexuals in a way that they are never used against heterosexuals.

These anomalies cannot be justified. Most of them were compromises made to facilitate the passing of the 1967 Act. It might have seemed to be good tactics at the time, but there is no logical reason for discrimination between these two forms of sexual behaviour.

At the very least, the same laws on sexual behaviour should apply throughout the United Kingdom. There should be no special prohibitions applying to the Armed Forces or the Merchant Navy. The definition of privacy should mean that a sexual act should not take place where it might be observed by others who might object. The age of consent should be the same for homosexuals and heterosexuals. The law on soliciting should be implemented without reference to the sex of the people concerned. No enactment of bye-law should prohibit conduct between persons of the same sex if it does not also prohibit similar conduct between people of the opposite sex. Penalties for sexual offences should be set at the same level for equivalent offences, whether they apply to male homosexual, or heterosexual offences.

Homosexual and Heterosexual Offences

It is not necessary to discriminate between homosexual and heterosexual behaviour in any of the laws regulating prostitution, brothel keeping, pornography, advertising for sexual partners, or in the application of any of the vague all-purpose common laws like conspiracy to corrupt public morals or breach of the peace.

We propose that the offences of buggery (S 12 of the Sexual Offences Act 1956) and assault with intent to commit buggery (S 16) be abolished. As the law [end p. 10] stands, a man and woman who have anal intercourse are both liable to a maximum term of life imprisonment, but the Sexual Offence Act 1967 allows a man over 21 to be lawfully penetrated and to penetrate another man over 21.

Importuning

Section 32 of the Sexual Offences Act 1956 re-enacts an older law which was originally intended to catch prostitutes’ touts or bullies, but has been used almost exclusively against male homosexuals. Indeed a recent judgment in the Divisional Court (Cooke v Edmondson, 1966) held that S 32 cannot be used against a man who solicits a woman. The law which prohibits homosexual conduct has been reformed, but this law on importuning is still the cause of much injustice.

Although the use of the word ‘persistently’ in the original wording of the Act suggests that the intention as to protect members of the public from interference or annoyance, the interpretation by the courts means that in practice the world of a plain-clothes policeman is usually accepted by the magistrate. In such a situation, it is not necessary to stress the possibility of exaggeration or perjury.

So fearful is the homosexual of the social repercussions that he can often be persuaded to plead guilty to lesser charges under a local bye-law on the promise from police of no publicity. A policeman is neither authorised to give such a promise, nor is he able to prevent publication of the proceedings in the press. It is not sufficient to argue that the penalties are comparatively light, for the ignominy that follows a conviction for importuning for homosexual purposes can still have a shattering effect on a man’s relationship with his family and friends, and on his circumstances at work.

As the law stands, it is not even necessary to show that someone has been annoyed or offended. The courts convict on police evidence alone, sometimes after doubtful means of entrapment have been used, such as an agent provocateur who incites a person to commit an offence. Someone who shows that s/he is available for sex by being in a certain place or by giving another person an enquiring look cannot be said to be acting in an offensive manner.

Soliciting only becomes annoying if it is directed towards the same person persistently and pressingly. The police should be required to produce the evidence of the person who has been persistently importuned. Consequently the law on soliciting should be amended to require that a person cannot be convicted of this offence unless it is proved that at least one member of the public (i.e. not a policeman) was offended by his or her conduct. It should also be a defence to show that the member of the public encouraged the soliciting.

As homosexual relations between consenting adults are no longer illegal, the existence of the offence of importuning or soliciting for an immoral purpose means that a person may be charged, convicted and punished for attempting acts which are not in themselves unlawful. All soliciting, from begging to high pressure salesmanship, can reach a stage when it becomes offensive, but it is doubtful if the public really requires extra protection when the soliciting is for sexual purposes.

Incest

For hundreds of years the crime of incest has given rise to such intense feelings of revulsion that public discussion on the subject has often been uninformed and irrational. The incest taboo is world wide and has a close connection with religious cults and magic. Recent researches (Maisch, 1973) cast some doubt on these historical and anthropological beliefs. The present day case against incest is firstly, that genetic damage may result in the offspring and secondly, that an incestuous union is disruptive to the cohesion of the family.

The first objection is strongly held, but recent studies on human reproduction do not give much support to this theory, and it is in direct contradiction to the practices of successful animal breeders. In any case, the advent of reliable contraceptives and safer abortion weakens this argument. As for the second objection, the evidence (Gebhard, 1965) suggests that families in which incest occurs between parent and child are often disturbed before it starts. To this extent, incest is not the cause but is one symptom of a disrupted family.

Although some of those charged with this crime are mentally or emotionally inadequate, this is not always the case, especially when the incestuous union is between brother and sister. In our view, no benefit accrues to anyone by making incest a crime when committed between mutually consenting persons over the age of consent. When force of threats are used, or when one of the partners is under the age of consent, the law on assault should come into operation.

We would therefore propose that the crime of incest be abolished. It may be argued, with some justification, that in cases of parent-child incest, undue pressure to consent could be placed on the child who is economically and emotionally dependent on the older party. This is just the sort of situation where bringing in the law could do immense harm to the child, the father and the rest of the family. A young person is far more likely to confide in a teacher, social worker or member of the family if this would not result in bringing down the full force of the law, with the possible outcome of the break up of the family with the father being sent to prison, the child having to appear in court and perhaps being put into care. There are many cases where the victim does not appear to suffer from any obvious psychological disturbance until after the case has come to court. It is often the publicity in the local press and the reaction of neighbours that is most damaging to the whole family.

Paedophilia

The strong emotions that surround the subject of paedophilia make it particularly difficult for justice to be done in such cases. Feelings of revulsion are often shown by parents, police, witnesses, magistrates and judges, and even by the lawyer briefed to defend the accused. In such circumstances, a wish for retribution can easily take precedence over a concern for the child’s welfare. Where the child was a willing partner in the sexual activity the strength of prejudice surrounding the case and the visible psychological effect on the defendant (who may have been a friend of the child) will be highly disturbing. Where the act involved force or was otherwise without consent, the need is to assist the child overcome the trauma, which may only be reinforced by legal proceedings.

Although clearly in the case of a genuine assault on a child, action has to be taken to protect other children from the offender, there is a growing feeling that the present legal system causes unnecessary suffering for the child victim of a sexual assault. In their report for the Institute for the Study and Treatment of Delinquency, Gibbens and Prince make the point that isolated events are unlikely to have any profound effect on a child who would probably soon forget about their experience if it were not for the significance given to it by parental concern and legal proceedings. They point out that several children appear to be undisturbed at the time they are required to give evidence in court, but later have a breakdown and become increasingly unsettled. It is important to realise that in some cases the child will have felt coerced into giving evidence damaging to someone s/he was fond of, and will at the same time have had his/her feelings of sexual guilt raised to a high pitch.

The lay person is often unaware that an ‘indecent assault’ in law can be committed without violence or physical harm being done to the child. A man can be convicted of an indecent assault without there being any physical contact with the child’s genitals; thus, putting a hand on a child’s thighs can be an indecent assault. Virkkunen (1975) studied a group of 64 paedophiles and reported : ‘Aggressive behaviour was not as a rule a characteristic of these offenders: on the other hand they seemed to be in a pronounced manner gentle, fond of children and benevolent.’

Parents, police and lawyers find it hard to believe that the child may actively seek the sexual relationship. Bender and Blau (1937) report : ‘This study seems to indicate that these children undoubtedly do not deserve completely the cloak of innocence with which they have been endowed by moralists, social reformers and legislators . . . frequently we considered the possibility that the child might have been the actual seducer, rather than the one innocently seduced.’ Other researchers (Gibbens, Virkkunen) agree that the children often take the initiative; some of them have sexual experiences with several adults.

Childhood sexual experiences, willingly engaged in, with an adult result in no identifiable damage. The Criminal Law revision Committee should be prepared to accept the evidence form follow-up research on child ‘victims’ which show that there is little subsequent effect after a child has been ‘molested’. Several researchers (Gagnon, 1965; Gibbens and Prince, 1963; Tolsma, 1957; Doshay, 1943) have shown that it is possible to exaggerate the damage done to the child. Bender and Grugett (1952) write: ‘Modern psychiatric follow-up studies of a sizeable series of individuals who as children had known these types of sexual experiences have not disclosed any directly adverse effect of the early incidents upon later social adjustments’. A large number of people (one researcher estimated it to be about one third of all children) have one or more pre-pubertal sexual experiences with an adult. So at least some of the readers of this report should ask themselves whether their early sexual activities with an adult have resulted in any unfortunate after-effects.

As many male paedophiles are attracted to boys, there is a fear that the boy who has sexual relations with an adult man will grow up to be a homosexual, but again there is no evidence for this. Rainer (1960) writes : ‘Homosexual seduction in itself was not found to determine homosexual behaviour, nor deter heterosexual behaviour’. Coon (1957) writes : ‘To assume categorically that these relationships are going to be traumatic for the boy is prejudgment of a type which certainly has no place in dynamic psychiatry’. The Speijer Report, recently produced by the Dutch Council of Health for the Ministers of Justice and of Social Affairs, concluded that homosexual experiences might benefit boys who later would live heterosexual lives, in the same way that young male homosexuals could only benefit form sexual experiments with both girls and women.

There is little doubt that a law court can be an alarming place for a child. During a trial on indictment the number of people present in court may be thirty or more, not including ordinary members of the public. A child is apt to be overwhelmed by the formality of the court. Although many of them will have seen court scenes on television, recognition of a familiar scene will be offset by the fear that their words may be twisted by a clever lawyer. The circumlocutions of lawyers can be confusing for a child, even when the lawyer is not directly challenging the child’s evidence. If the child has been a willing partner in the offence, s/he will know that retribution can be avoided by claiming to be an innocent victim – which is what parents and others will want and expect to hear. Furthermore, the child will be required to repeat the story to parents, police (sometimes more than once) and then in court, with the risk that the child’s memory may become faulty and that details may be elaborated.

It is important that courts dealing with paedophilia should arrange to have the child’s evidence given in court at second hand, unless this is unfair to the defendant. If the statement from the child is not disputed, it can be treated as evidence. Where the defence wants to cross-examine the child, a magistrate can see the child with one representative form either side, but following less formal procedures than in a courtroom.

This suggested change in the law is merely a palliative. The real need is a change in the attitude which assumes that all case of paedophilia result in lasting damage. The present legal penalties are too high and reinforce the misinformation and prejudice. The duty of the court should be to inquire into all the relevant circumstances with the intention, not of meting out severe punishment, but of determining the best solution in the interests of both child and paedophile.

[Texts referred to in the above]

Lauretta Bender and Abraham Blau, ‘The reaction of Children to Sexual Relations with Adults’, American Journal of Orthopsychiatry, 7, 500-518, 1937.
Lauretta Bender and Alvin Eldridge Grugett, ‘A Follow-up report on Children who had Atypical Sexual Experience’, American Journal of Orthopsychiatry, 22, 825-37, 1952.
Earl A. Coon, ‘Homosexuality in the News’, Arch. Crim. Psychodynam., 2. 843-65, 1957.
L.J. Doshay, The Boy Sex Offender and his Later Career. Grune and Stratton, 1943
John Gagnon, ‘Female Child Victims of Sex Offences’, Social Problems, 13, 176-92, 1965.
T.C.N. Gibbens and Joyce Prince, Child Victims of Sex offences, ISTD, 1963.
J.D. Rainer, A. Mesnikoff, L.C. Kolb and A. Carr, ‘Homosexuality and Heterosexuality in Identical Twins’, Psychosomatic Medicine, 22, 251-9, 1960.
F.J. Tolsma, De Betekenis van der Verleiding in Homofeile Ontwikkelingen, Amsterdam Psychiatrical Juridical Society, 1957.
Matti Virkkunen, ‘Victim-precipitated Paedophilia Offences’, British Journal of Criminology, 15, April 1975.