Introduction

In late 2020 parliament legislated almost without opposition to make sexual relations between clas of people illegal, for a chamber who was so enamoured with outrage over plans to return the voting age to 18. To be it is bizarre that one aspect of autonomy ‘voting’ can gather such strong opinions. Yet a liberty that had been enjoyed not for 2 years as voting but since time immemorial a freedom to be able to be sexually free and consent as you wish is disregarded so quickly and so universally.

Perhaps it is because the B1058 Sexual Offences (Position Of Trust) Act was sold as a ‘loophole’ removing measure.

A proper consideration of English law around consent I think shows this to be fallacious.

The Sexual Offences Act 2003 and positions of trust

To get a wider appreciation of the facts we should start by looking back to 2003 with the passage of the Sexual Offences Act.

It was a landmark piece of legislation it revoked offences of ‘gross indecency’ and buggery - both used to target consensual acts between gay men. We will return to these offences in time.

In Section 21 of the Act it created the offence that concerns this article, the offence of abusing positions of trust. The offence specifically targets any sexual activity (including consensual) between a 16 or 17-year-old young person and people who hold a defined ‘position of trust’ over that young person. The sexual activity concerned could be consensual because it was felt that the position of trust that certain people held was such that the dependency on them from the young person on them was such that no sexual activity could be consensual.

The offence was designed to target the very clear cases where true consensual sexual activity would not be possible. It thus targeted those who are employed to look after young people in a residential care home, a hospital or an educational institution. Where there is a huge dependence and disparity in power relations.

The following exchange between the then Labour Lord Chancellor Lord Falconer and Baroness Blatch, a Conservative, who had said she was “disappointed” that an amendment had not been made in the Bill to encompass those being supervised as scouts or in youth centres, I feel is elucidating as to why a limited definition was choosen.

“We think it is right to restrict it to people who have a care or training function in relation to the people who may be victimised. We think it would be going too far to include a janitor or someone else who works in a school but is not a teacher. I understand the noble Baroness’s argument, but a line has to be drawn somewhere and we think that is the right place.”

Lords Hansard, 13 February 2003

So to conclude this section two things should be clear;

The 2020 Act was not correcting loopholes as its supporters suppose, it was a considered choice.

That choice was made because of the trade off between criminalising genuinely consensual activity.

The evolution of English Law on consent

Perhaps the most significant and least appreciated change in the Sexual Offences Act 2003 was not any offence alone but the creation of a statutory definition of consent.

Section 74 of the Act provides that consent can only be made by people with freedom and capacity reading;

"For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice."

The statutory definition of consent in Section 74 was considered in a number of cases where ostensible consent was considered not to be true consent. The key cases in this area are:

Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849

The Queen (on the app of F) v DPP [2013] EWHC 945 (Admin)

R v Justine McNally [2013] EWCA Crim 1051

These cases it has been clear in law that ostensible consent was not true consent, because of a material deception or because the suspect failed to comply with a condition which the complainant imposed on the giving of his/her consent.

The judgement in The Queen (on the app of F) v DPP makes clear that evidence as to the question of if the giver of consent was genuinely free to make such a choice and give consent can be considered;

“The evidence relating to "choice" and the "freedom" to make any particular choice must be approached in a broad commonsense way.”

In light of the above three cases the Crown Prosecution Service embarked on a changed policy and now considers sexual assault, rape and other cases where consent would not have existed in law as a result of a consideration of choice and freedom as provided for in section 74 of the 2003 Act.

What does this mean for positions of trust?

Well ten years late, the CPS applied a commonsense interpretation of the 2003 Acts definition of consent to crimes. Meaning that cases where consent is not genuine as a result of the abuse by someone of a dependency relationship can be prosecuted.

Thus the status of British law before the 2020 Act passed was such that non genuine consent between both the groups specified in the act and others groups such as janitors, scout masters etc as Baroness Batch brought up - was prosecutable.

All the 2020 Act did was therefore add consensual activity to what was criminalised.

Should the government be able to criminalise consensual activity?

Broadly outside of incest, no.

I mentioned earlier the offences of ‘gross indecency’ and ‘buggery’ 19th century offences designed to target male homosexual conduct first with execution, then imprisonment, then chemical castrations as happened to the war winning mathematician Alan Turing.

These offences were only repealed after they were ruled incompatible with Article 8 of the European Convention of Human Rights which guarantees;

Article 8 of the Convention– Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Private life is a broad concept but sexual life being perhaps the most core private aspect of life clearly is covered, and this reflected in case law. When the court has been asked to weigh in before in Dudgeon v. The United Kingdom concerning buggery laws. It found clearly that public morality is not sufficient reason to allow criminalisation and that tolerance and broadmindedness ar hallmarks of democracies.

Just as consentual activity between gay men should not be targeted, neither should genuinely consentual activity a person and a faith leader, or a driving instructor or sports coach.

Parliament should consider when it returns after the next election the need to remove these arbitrary restrictions on consensual activity and ensure that the law on consent allows our courts to not look at the types of parties consenting but the quality of the consent.

Links

ECtHR cases;

Dudgeon v. The United Kingdom

Cases in England;

Julian Assange v Swedish Prosecution Authority 2011EWHC 2849

The Queen (on the app of F) v DPP 2013 EWHC 945 (Admin)

R v Justine McNally 2013 EWCA Crim 1051

Legislation;

Section 74 “Consent” Sexual Offences Act 2003

[Sexual Offences (Position of Trust)] Act 2020(https://www.reddit.com/r/MHOL/comments/iklase/b1058_sexual_offences_position_of_trust_bill/)

It amends but adding to section 21 and 22 of the 2003 Act.