This response to your letter of 17 June is on behalf of the Gay and Lesbian Humanist Association. In our considered view, the proposals in the consultation paper on Sentencing and Supervision of Sex Offenders [CM 3304: hereafter called ‘the paper’] are fundamentally flawed. They fail to give adequate consideration to the implications of the facts [recorded in paragraphs 5, 6, and 46 of the paper] that “the risk presented by sex offenders varies considerably”, that “sex offenders are not a homogeneous group”, and that “the circumstances of an offence may vary considerably”. Furthermore, they depart from the general principles that people should only be punished in respect of the acts which they have performed, as distinct from the sort of people they are deemed to be, and that their punishment should then be determined by the judiciary.
The paper confuses a number of different types of offences. Victimless ‘crimes’ need to be distinguished from genuine offences which do have victims, and the former should be totally excluded from proposals such as those in the paper. Offences against adults must be considered separately from crimes against children. The imprecise use of the term ‘child’ in the paper is particularly misleading; and there should be a further distinction between offences against pre-pubertal children and those involving adolescents aged between, say, 14 and 18.
The lack of clarity in the consultation paper as currently drafted makes coherent comment difficult. It should therefore be withdrawn, and amended proposals presented which concentrate on the basic cause for concern – that is, the treatment of people convicted of non-consensual offences against young children. Any such proposals should be supported by the publication of the relevant facts, and analysis of the facts, on the basis of which they are then made.
Starting with paragraph 1 of the paper, we would first point out that there are some so-called sex offences listed in Annex A for which there is no need to improve protection, simply because there are no victims to need protecting. This applies to all consensual offences under sections 12 through 16 and 32 of the Sexual Offences Act 1956, as well as section 2 of the Sexual Offences Act 1967. [The inclusion of this last in Annex A, despite its repeal by section 146(3) of the Criminal Justice and Public Order Act 1994, surprised us; as did the failure to take account of section 45 of Schedule 9 to that 1994 Act more generally.]
For the reason just stated, it is wrong for paragraphs 5 and 8 to imply that all sex offenders under current laws have victims. In our view, victimless (i.e. consenting) behaviour should not give rise to legal offences. While we accept that this raises wider issues than those addressed in this paper, we do consider that the paper should at least specifically exclude offences against people over 14 unless they either have actually complained or else require legal protection from an offender who has been shown to have abused a position of authority.
In response to the second query in paragraph 17, we are clear that no consensual offences under sections 12 through 16 and 32 of the Sexual Offences Act 1956 or under section 2 of the Sexual Offences Act 1967 should be included. We are not persuaded that any sexual offences against people above the age of puberty (with the possible exception of rape) would justify an extended period of supervision following release from custody.
A number of points in the paper gave us pause, as they seem to fit into an increasing tendency to restrict people’s civil liberties in the supposed interests of crime prevention. More care is needed in balancing these two legitimate objectives; and that will be easier if the sphere of sexual crime is restricted (as it should be) to acts which have demonstrable victims. We are thinking here of the proposals about extending electronic tagging, DNA testing, computerized registers, etc.
In particular, we would consider it totally unacceptable for people convicted of victimless ‘crimes’ to be required to notify the police of any change of address. Indeed, the problems of confidentiality (and of data errors) mentioned in paragraph 62 are such that we would wish to see access to any such register subject to the most stringent controls. To take an example which we hope to be an extreme one, there should be no way in which journalists could gain access on the pretext that they were writing an exposé which would serve the purpose of protecting children.
We note that the Bill mentioned in paragraph 42 related to sexual offences against children, and any legislation about notifying the police about address changes should indeed be restricted to offences against children – by which, of course, we again mean those below the age of 14. There should certainly not be any general requirement for address registration for other sex offenders; and the proposals at the start of paragraph 46 are far too widely drawn, for the reasons given at the end of that paragraph.
Even if registration were restricted to convicted child abusers – and we find it hard to see why sexual abuse should be singled out in this context, as other physical, moral, or emotional abuse can be equally serious – the proposals would involve serious infringements of civil liberty, and we are not convinced by the case as presented. If introduced, registration should not be made retrospective nor should it apply to any but the most serious offences, and then only at the discretion of the convicting court. The discussion in paragraphs 58-61 casts serious doubts on the whole idea, which we could in any event only support if we were convinced that access would be properly and rigorously controlled.
Turning now to the proposals about preventing offenders from seeking employment involving access to children, here again any legislation should be restricted to people convicted of offences against pre-pubertal children. We note that paragraph 65 refers to substantial unsupervised access to children: this would seem more appropriate than the phrase direct access used in paragraph 71. In our view, the suggested age of 18 is unreasonably high. An age of 14 would be more appropriate, as specific reference to children under the age of puberty would probably be too uncertain in this context. The case in paragraph 75 for appeal or review is valid, and provision would be needed for that.
The final section of the paper asks about its application to juveniles. On balance, we feel that they should be included, subject to the safeguards and limitations suggested above. There is a need, however, for allowance to be made for the fact that a relatively small age difference may make an offence with a boy or girl much less serious.
The facts and analysis behind the framing of the policy proposals in the paper should be published, thus honouring the commitment in paragraph 3 of the May 1994 Code of Practice on Access to Government Information. Please treat this as a formal request for the publication of all such information under the terms of paragraph 5 of that Code.
One reason for the above request is our concern that assertions are made in the paper about a general propensity for offenders to re-offend, yet the only statistics quoted (in paragraph 39) do not support this assertion. In particular, we wish to see all available statistical information quantifying the propensity of offenders convicted of consensual ‘offences’ with other adults to offend subsequently with children below the age of 14. The research underpinning each of the generalisations in paragraph 6 of the paper needs to be published, and time given to assess the results, before firm proposals are made.
Finally, we must deplore the way the paper confuses and downgrades the serious issue of child abuse by failing to distinguish it from consensual acts which should properly be outwith the purview of the criminal law. The proposals to include homosexual ‘offences’ under section 32 of the Sexual Offences Act 1956 while (very properly) excluding the corresponding heterosexual offences under section 2 of the Sexual Offences Act 1985 makes this even more unjust. This is something which needs explicit explanation in your response to our request for the facts behind the proposal under the terms of the Government’s initiative on open government. The implied association of consenting acts between homosexual adults with acts which involve the abuse of children is homophobic and deeply offensive.