Sexual Offences

Law and Context

Samantha Pegg, Anne Davies

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317616399
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Sexual Offences: Law and Context presents the substantive law governing sexual offending in England and Wales in its socio-legal and historical context. It outlines the complexities of the Sexual Offences Act 2003, associated pieces of legislation and the common law offences in a clear, linear narrative.

The book highlights and discusses key themes in the contemporary law including rape and consent, sexual offences against children, abuse of people with mental disorders, pornography offences, and prostitution. It offers a critical discussion of challenges for the law and potential ways forward for the future.

Designed to be a comprehensive overview, Sexual Offences: Law and Context will be an invaluable resource for students of law and criminology taking courses on sexual offences or pursuing research in this area.

Chapter 1

Social Responses and Criminalization

Introduction

The law relating to sexual offences is complex and sometimes inconsistent. It often reflects a desire to protect the vulnerable, but at other times seems to reflect a particular moral view. In later chapters of this book we consider the legitimacy of sexual offences, of state intervention into private lives, the removal of individual liberty and how the state chooses to punish those who transgress the law. In order to understand why (and whether) the state has (or should have) this right we need to briefly consider the purpose of the law and why we choose to regulate sexual behaviour.

In regulating sexual activity the law intrudes in private sexual relations. Where there is no consent to sexual activity this is not usually a contentious intrusion (although as Chapter 3 considers, consent is by no means straightforward) but for other private sexual activities such as consensual sexual activity with a relative, sexual activity with an animal or between children we need to think about whether interference can be justified.

Law does not operate in a vacuum and the ‘what’ and ‘why’ of regulation is driven by our perceptions of dangerousness; both in terms of what may be injurious to wider society and to individuals. Our responses to criminal justice policy have become increasingly important with Governmental policy increasingly called upon to respond swiftly to contemporary concerns. These concerns are shaped by our understanding of what activities pose a threat and the media plays an important role here. Most of us gain our knowledge of crime statistics, victimization, sentencing etc., from media sources and these, in turn, draw upon official sources, some more accurately than others. The reliability of these sources and how they present offending behavior needs to be carefully considered.

This chapter seeks to provide context and resources for considering the sexual offences set out in the following chapters. Of course, as the following discusses, sexuality and appropriate sexual behaviours are subject to social shifts and the law often finds it difficult to keep pace with societal norms.

What is Law?

Jurisprudence is the study of law, its theoretical underpinning, its institutions and systems. The philosophy of law is a branch of jurisprudence that seeks to answer questions such as what law is and how and whether laws can be justified. This is not of course a book about jurisprudence and we can only touch on the subject briefly, but it is important to have a basic understanding of these concepts.

So to take the central questions first; what is the law? What behaviour should amount to a criminal offence? You may think these are simple questions with straightforward answers, but the answer is dependent upon your school of thought. For example, at the more esoteric end of reasoning is natural law, which dictates that standards governing human behaviour derive from nature – both the nature of human beings and the nature of the world. Here the law is understood to be a rational but ethereal thing, easily divined, say natural lawyers, from principles universally understood to be moral and right. Consequently acts such as murder and rape are inherently understood to be immoral and wrong regardless of whether they are criminalized under state law. These principles extend into every area of regulation, as the philosopher John Locke wrote:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions …¹

Locke was concerned with the legitimacy of state authority and the rights of the people to grant (and take away) state power. But natural law has endured with proponents such as John Finnis² refining and updating the concept. This said, the content of natural law is less than clear, relying on an inherent sense of knowing what is inherently right and wrong without recourse to state law.

In a similar vein, Lord Devlin suggested the law’s role is to promote and enforce a public morality. In a series of debates prompted by the Report of the Departmental Committee on Homosexual Offences and Prostitution (also known as the Wolfenden Report 1957)³ Lord Devlin argued:

Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government … the suppression of vice is as much the law’s business as the suppression of subversive activities.⁴

To Lord Devlin social cohesion was all and the law a valuable tool for suppressing unacceptable behaviour and enforcing moral norms. Despite the fact this position is somewhat dated, we will see many sexual offences are justifiable almost solely on the grounds of immorality. The power of the state to limit autonomy for its citizens’ own good, also known as state or legal paternalism, has attracted many detractors, including Locke and Immanuel Kant.⁵ Despite paternalism having something of a bad name due to its linguistic roots in patriarchalism (the power of the monarch over his or her subjects), it does justify interference most would find acceptable. For example, we have an age of consent below which children cannot legally consent to sexual activity, a concept generally accepted in society.

Where natural and moral lawyers suggest certain values transcend state law, legal positivism suggests law is, quite simply, socially constructed. Proponents such as Hans Kelsen⁶ and H.L.A. Hart⁷ sought to divorce law from morality and the legal positivist looks to the legitimacy of the law, whether it has been enacted by a legislator, jurist or other authority granted the power of law making, and is unconcerned with the moral legitimacy of that law. This is an attractive theory, making law easy to identify (it is what is ‘on the books’) and is subject to evolution through time, culture and moral shifts. However, detractors have argued an acceptance of ‘pure law’ gives legitimacy to laws of regimes we would argue are morally abhorrent – such as slavery (which was legal in most of the British Empire until 1833) and the acts of Nazi Germany. For example, the Nuremberg laws of 1935 in Nazi Germany excluded German Jews from citizenship and prohibited them from marrying or having sexual relationships with non-Jews. These laws laid the foundation for subsequent legislation that denied Jews basic human rights, culminating in the Holocaust.

How then do we find a more socially acceptable definition of law? Perhaps we should turn to Utilitarianism, the philosophy that sought to define the law by legitimizing legal principles for the benefit of the majority. Jeremy Bentham posited the true goal of society ought to be the greatest happiness of the greatest number and argued no action is wrong in itself; its evil arises from its consequences and there can be no justification in prohibiting an act unlikely to produce harm. This idea was developed and modified by John Stuart Mill, in his essay On Liberty (1859), who argued that there are limits to the right of a state to interfere in the life and conduct of a citizen and his/her own good, either physical or moral is not a good enough reason to interfere – liberty is the important thing – the only purpose for which power can be rightly exercised over any member of society, against his or her will, is to prevent harm to others. Our law continues to be heavily influenced by utilitarian principles, as Setting the Boundaries (the consultation paper on sexual offences published in 2000) confirmed:

Our other key guiding principle was that the criminal law should not intrude unnecessarily into the private lives of adults. Applying the principle of harm means that most consensual activity between adults in private should be their own affair, and not that of the criminal law.⁸

Despite this statement of utilitarian principle the law quite rigorously governs private sexual activity, an issue explored in the following chapters.

Utilitarianism then looks to limit state interference with activities adjudged immoral or socially unacceptable but that do not cause harm to others. This of course raises the question of what we mean by harm. If we accept harm can be more than physical and can involve social disintegration or moral degradation then it starts to look like the state can rightfully criminalize marginal and private activities that impinge on social welfare – an argument we see forcefully expressed by Lord Templeman in Brown (1993).⁹ In Brown a group of homosexual men had engaged in consensual sadomasochism, including activities such as whipping, branding and piercing genitalia. None of the participants suffered injuries requiring medical treatment but the injuries amounted to bodily harm for the purposes of the Offences Against the Person Act 1861. On appeal and addressing whether it was correct for the law to intervene in cases where physical harm has been consensually inflicted, Lords Templeman, Jauncey and Lowry agreed that sadomasochism posed a threat to society that justified legal intervention.

Returning to our earlier question of how we can find a socially acceptable definition of the law we could perhaps accept the legal positivist argument that law is that which is enacted or articulated by those bodies we have given legitimacy to. The sociological view of the law supports this and further advocates that these resultant legal principles cannot be viewed in a vacuum – as an entity separate from the society they set out to regulate. The passage below is from an early attempt by Timasheff (1937), which seeks to prompt sociological investigations of the law and explains why we need to think more broadly about how the law interacts with society:

In general, legal norms actually determine human behaviour in society: the triumph of law is the rule, its defeat in a concrete case an exception. Why is this so? What is the force of law? How does law determine human behaviour in society? What are the conditions for the efficacy or non-efficacy of legal norms-in other words, of adjusting or not adjusting human behaviour to the particular social patterns of behaviour forming law?¹⁰

As this extract suggests, we need to think about law in context; indeed this is the crux of this text. Here Timasheff has questioned whether the narrow and inward focus of jurisprudence is sufficient to fully understand how law operates in society. He makes an important point, one we take up ourselves in our discussions regarding changes (or a lack thereof) in behaviour. He has not been the only critic of jurisprudence. Feminist critiques of the law are also a form of sociological analysis and, in their most simplistic form, view law as an exercise of power by a stronger section of society over a weaker one. The unsatisfactory regulation of offences such as rape are often seen as indicative of patriarchal agendas that enforce and protect male rather than female interests.

What the law is is perhaps not as important as what it does, what it should do and the impact it has on society. What then is the function of the law, what is its purpose? Should it dictate behaviour or reflect and reinforce our existing values? In the field of sexuality this question becomes very important – remember we are talking about the state regulating bodily autonomy, in many cases what you can do, consensually, in the private realm.

Justifying Regulation

Sexual offences occupy an interesting position in our legal system. Though criminal offences, they are elevated to a special category of offence that may result in lengthy sentences and invasive forms of community management. The consequences for both offenders and complainants can be serious and long lasting – and the law has to strike a balance between protecting bodily integrity and preserving individual autonomy.

Any study of the criminal law will ...