An imperfect Bill

JAMES MORTON CASTS A CRITICAL EYE OVER THE SEXUAL OFFENCES BILL AND TRACES ITS HISTORY

The Sexual Offences Bill now before Parliament is likely to cause confusion.

There is a curious dichotomy over sex in public.

Intercourse in a public lavatory cubicle - with the door closed - is to be legalised.

There is to be no more sex in the garden where the neighbours might see you, but there will be no problem if a couple provide a public exhibition in their sitting room with the window open.

A new crime of voyeurism comes with the Bill, so we have the odd situation that you can have sex in a public convenience but someone who watches through a hole in the partition commits an offence.

In comes necrophilia as a crime despite cogent evidence that it is a condition that needs treatment rather than punishment.

The same applies to bestiality, which - despite the courts' views in recent times that the offender and his family need help - is a crime.

Particularly interesting is the decision to continue with incest as a crime.

In the 19th century, it was an ecclesiastical offence expiated by wearing a white shirt and holding a candle in the market place, but it came onto the statute books as a by-product of the Criminal Law Amendment Act 1885, which in part was aimed at protecting young girls from their rapacious fathers.

The first obstacle to the prosecution of a father was that parental consent had to be obtained before a medical examination of the child could take place.

The second was that a prosecution had to start within three months.

If the first did not confound those seeking to protect children, the second did.

All that was needed to deal with this was a simple amendment to the 1885 Act.

Instead, the Punishment of Incest Act 1908 was another of the symbolic crusades mounted so that the prestige of the proponents of the new law overrode the concern for those whom it was designed to protect.

Homosexuality may have been the 'love that dares not speak its name' but incest was the love whose name others dared not speak.

The Lancet referred to 'things done in secret' and thought they should never be published.

Hansard reports that the parliamentary Bills published in 1903 (which failed) and 1908 (which led to the Act) referred to a 'very disagreeable subject' and 'a very painful subject'.

No further explanation was given.

Apart from the intention of protecting young girls, the Incest Act may have been a by-product of the quest for better housing for the working classes.

Ellice Hopkins, who - funded by the Salvation Army - had helped to promote the Criminal Law Amendment Act 1885, was still stomping the country advising the working classes on how to avoid immorality in general, and incest in particular, while living in close and crowded conditions.

The advice included hanging a curtain between the beds, using hammocks and, particularly, washing in shifts - by which she presumably meant both in smocks and in turn - so that brothers and sisters never saw each other naked.

Additionally, Ms Hopkins was to tell the ladies of her county associations to 'keep a watchful eye on the hayfields at mealtimes'.

Incest was really only a tiny part of the larger immoral behaviour from which the working classes, whom it was believed had exclusive rights to this sort of conduct, had to be protected.

In 1893, the National Society for the Prevention of Cruelty to Children promoted a draft Incest Bill.

Morality was the keyword.

No longer were the proponents interested only in the protection of the young, but also in the prohibition of incest between consenting adults.

When Colonel Amelius Lockwood moved the second reading of the Incest Bill in 1903 he did not believe that honourable members would imagine that such crimes should not be severely punished.

But the honourable members were not that concerned, and the Bill was defeated, to be re-introduced five years later.

This time it would be strongly supported by the Liberal MP for Bath, Donald McLean, who drew attention to 'this grave moral offence which,' he was sorry to say, 'is rife in certain parts of the country'.

And so, at the chime of the clock, something middle-aged couples had been doing perfectly lawfully for years became a crime.

Is there any need for retaining incest as a crime? The Bill has sufficient safeguards available for cases involving young people.

One argument is that there is a higher risk of abnormality, possibly as much as 28%, in the offspring, but there is a correspondingly higher risk of defects in children born to older mothers.

Nor is intercourse prohibited in unions where one party suffers from, say, haemophilia or Huntington's Chorea, both of which illnesses carry a high risk that the defect will be passed to the child.

The Criminal Law Revision Committee has recommended that incest between a brother and sister, both aged older than 20, should no longer be a crime and it has the support of a working party of the Howard League for Penal Reform which, in its 1996 report, 'Unlawful Sex', argued against the prosecution of consensual acts for adults, as does the Sexual Law Reform Society.

It is a pity that the government has not listened to the committee's recommendations.

James Morton is a former criminal law specialist solicitor and now a freelance journalist