Sexual Offences Act 2003: Positions of Trust
(3 years, 1 month ago)
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Sarah Champion (Rotherham) (Lab) [V]
It is a huge honour to be here, Mr Deputy Speaker. Thank you for granting this debate about closing the loophole in the law to protect 16 and 17-year-olds from sexual exploitation.
I have been campaigning on this vital issue for years, but I wish we did not have to be here again. The only reason we are here is that the Government have failed time and again to listen to me, to other MPs, to peers, to charities—especially the NSPCC and Thirtyone:eight—and to victims and survivors of sexual exploitation. The Government have failed time and again to close a loophole in the Sexual Offences Act 2003 that leaves 16 and 17-year-olds open to sexual abuse. Currently, section 22 of the Act describes a person in a position of trust if they are
“regularly involved in caring for, training, supervising or being in sole charge”
of a child. Someone in a position of trust who then has sex with a 16 or 17-year-old in their care is acting unlawfully.
However, this sensible legislation only applies to adults working in a set of professions listed in section 21 of the Act, including teachers, care workers and youth justice staff. This loophole allows adults such as faith leaders or sports coaches—who clearly meet the criteria in section 22, but are not on the list of public sector professions—to be above the law, and therefore to engage in sexual activity with 16 and 17-year-olds in their care with impunity. Given the Government’s claim to be sending out what the Home Secretary’s foreword to her recent “Tackling Child Sexual Abuse strategy” describes as
“a clear message to those who abuse our children”,
I fail to understand why, after years of persistent campaigning by Members across the House, action to protect children from being sexually exploited by adults in positions of trust has not been taken. In the same strategy, the Home Secretary goes on to state that
“if you think you can…abuse positions of trust—think again, you will pay for your crimes”,
but that is not true. Government inaction means that there remain a whole host of adults in positions of trust, from sports coaches to those in faith organisations, who are not covered by the law and who will simply say that the 16 or 17-year-old consented to a sexual relationship with them as their defence. That is if the abuse is ever discovered. The current legislation makes it the child’s responsibility to identify, report and be the witness in court to the abuse. This is totally unrealistic and unjust.
Closing the current loophole would simply make the act of sex with a child in your care a crime. Does the Minister really think that a maths teacher has more influence over a child than their sports coach? The child will see that sports coach every day, and the coach will have the power to make their dreams come true or dash them. Currently, the law does think that the maths teacher has more influence. I was pleased that, in 2019, the Ministry of Justice finally conducted an internal review into the law. Then, in March 2020, after being in post for only a few short weeks, the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk) stated that it was
“crystal clear…that this is an extremely important issue which requires a clear, considered and decisive response.”
The Minister went on to say that
“we should urgently consider all options, including legislative change, and must be in a position to announce next steps by the end of May.”—[Official Report, 4 March 2020; Vol. 672, c. 303WH.]
That was in March 2020, but as I am here again today, it goes without saying that no announcement was forthcoming. So I ask the Minister, given his May deadline, when exactly the Government will be able to announce the next steps to protect children.
In February 2003, Baroness Blatch highlighted the loophole and called for it to be addressed. The Baroness was the first to raise this concern, but she certainly was not the last. I would like to pay tribute to all those who, over the years, have urged the Government to close this loophole. In particular, I want to recognise the work of the hon. Member for Chatham and Aylesford (Tracey Crouch) and that of Tanni Grey-Thompson in the other place, both of whom have worked tirelessly to draw attention to predatory sports coaches abusing children in their care.
The Minister is aware that I have previously carried out an inquiry on this topic in my former role as chair of the all-party parliamentary group on safeguarding in faith settings. The APPG published its report in 2019. It highlighted that adults holding positions within faith organisations
“will automatically be seen as having authority, power and influence.”
There is a power imbalance, and when combined with the close, regular and intense contact between faith leaders and young people, this creates significant opportunities for grooming and abuse. Young people and their families place significant trust in these leaders, and there is a failure to question potential abusive behaviour or poor safeguarding standards. Many young people and parents assume that legislation prevents faith leaders and workers from engaging in sexual activity with children under their care.
That is the nub of it. If someone leaves their child in the care of a professional, even if the child is over the age of consent, it is completely logical to assume that the law would apply if that professional failed in their duty to safeguard. Sadly, because of Government inaction, parents are making the wrong assumption. The law does not prevent faith leaders, sports coaches, driving instructors, tutors or even police officers from engaging in sexual activity with a 16 or 17-year-old under their supervision. It is important to add that many children will have been groomed by the professional prior to their turning 16, and they will actually believe that they are in a relationship with their abuser.
Let us take the example of Hannah—not her real name—who featured in the NSPCC “Close the loophole” campaign. Hannah swam from a young age and took her training seriously. She admired her coach, Jeff, and would work hard to be given praise by him. When she was 15, Hannah was having a difficult time, and Jeff built up her trust by supporting her. After Hannah turned 16, Jeff started to compliment her, saying she looked nice, or that her clothes looked nice on her. He said she looked beautiful and attractive. Hannah says that she had not heard a man say those kinds of things to her before, and she was unsure how she felt about it, but things progressed to the point where they started having sex. The relationship lasted over a year before a disclosure revealed what had happened. The police questioned Jeff, but no charges were brought, due to Hannah being over 16 and therefore able to consent to sex.
A Freedom of Information request commissioned by the NSPCC found that between 2014 and 2018, there was a total of 653 recorded cases in which adults in a position of trust had had a sexual relationship with a child of 16 or 17 in their care. What really horrifies me is that those numbers will be just the tip of the iceberg. As the law stands, it is the child’s word against their abuser—if the offence is ever uncovered— which means that the vast majority of cases will never see the light of day, let alone be investigated or recorded. That is just as the abuser intended.
The all-party parliamentary group on safeguarding in faith settings, the NSPCC, the independent inquiry into child sexual abuse, Thirtyone:eight, the Church of England, Sport England, West Midlands police, the Offside Trust, the former Chancellor of the Exchequer and even the Home Secretary are all calling on the Government to close this loophole to protect children. What more will it take for the Minister to act?
Protecting children and young people from harm should be one of society’s top priorities. It is really is quite simple. The law needs to change so that all adults who hold a position of trust over a child, even if that child is 16 or 17, must be banned from having sex with them. Over the years of campaigning on this, I have heard the same justifications for doing nothing from a host of different Ministers.
I suspect that tonight the Minister will highlight that the law around positions of trust offences is complex, and that any reforms should not unduly impinge upon the sexual rights and freedoms of those who are over 16. The Minister may say that a broad new definition of positions of trust could result in the age of consent being raised by stealth. I appreciate and understand the complexities here, and of course the unintended consequences must be considered.
I am not here to argue for denying young people age-appropriate rights to agency and self-determination, but we cannot abandon our duty to protect children from abuse when it is clearly happening. Children and young people across the country will soon be returning to school and many will again participate in vital extracurricular activity after an incredibly difficult year. The Minister has the ability to protect those children from abuse. He has already acknowledged the urgency and pressing nature of this problem, so will he confirm tonight that the Government will once and for all close the loophole in the Sexual Offences Act 2003 and make sure that 16 and 17-year-olds are protected from all predatory professionals in a position of trust over them? Minister, I await your answer.
Mr Deputy Speaker (Mr Nigel Evans)
Thank you, Sarah Champion. The Dispatch Box was sanitised while we were off screen.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I congratulate the hon. Member for Rotherham (Sarah Champion) on securing the debate on the law about positions of trust and the Sexual Offences Act 2003. She is right—she has a strong interest in this area of law, and she deserves the House’s thanks for her work, including steering the work of the all-party parliamentary group on safeguarding in faith settings, which has helped inform our thinking as we consider the protections afforded to children and young people by the criminal law.
I confess I was a little disappointed by the very partisan tone that the hon. Lady took. Lest we forget, in 2003, under a Labour Government, a deliberate decision was made to limit the reach of the criminal law in this way. To emphasise that point, the Lord Chancellor at the time is the current shadow Attorney General. When we consider these matters, it is important to take some of the political sting out of it and recognise that they are difficult issues.
Our shared priority across the House is of course safeguarding young people and I welcome the opportunity to debate the important issue of the abuse of power by those who hold positions of trust in relation to young people and choose to exploit that to engage in sexual activity.
I acknowledge that it has taken a little time for us to share our next steps following our review of the law in this area, but I hope that the hon. Lady will appreciate that extending of the scope of protection gives rise to the complex issues that have had to be considered in a challenging broader public health context.
The hon. Lady is right; we did have a debate in March last year. As she will be aware, there have since been a number of competing considerations, but I hope that I can reassure her that our work in this important area remains a priority. We are continuing to look at how the law might be strengthened in this area, and I hope to set out our plans very shortly.
Jim Shannon (Strangford) (DUP)
I commend the hon. Member for Rotherham (Sarah Champion)—she is Champion by name and champion for the work that she does, which we all appreciate and thank her for very much. We live in a very different world, as the Minister knows, and I believe that we in this House have a duty to protect the vulnerable and also those in positions of trust. What discussions has he had with the devolved Administrations, such as the Northern Ireland Assembly, to ensure that, whatever legislation comes through, we all come under the same rules and law?
Alex Chalk
It is a pleasure, as always, to hear from the hon. Gentleman. Indeed, I remember him asking this important question when we were in Westminster Hall. We have been sure to consult all the devolved Administrations, as indeed have sports bodies and faith bodies operating in those jurisdictions, because we want to ensure that we received feedback from across the United Kingdom in order to reach the right result.
Let us begin with some first principles, because they really are important. Any sexual activity with a child under 16 is a serious criminal offence regardless of whether consent is given. Equally, any non-consensual sexual activity is a crime whatever the age of the victim and whatever the relationship between the victim and the perpetrator. If an adult has sexual intercourse with someone over 16 and they do not consent, that is a crime in all circumstances.
Furthermore, when it comes to consent, the law has developed through our courts to ensure that, in many circumstances, if the perpetrator was in a position of power where they could abuse the trust placed in them by a victim, that may negate—or may vitiate, in the words of the law—any supposed consent given. It is always important to consider the facts of individual cases and recognise that law in any event may be apt to cover the criminality that is engaged.
However, alongside the more general sexual offences that address this behaviour, as hon. Members will be aware, and as the hon. Member for Rotherham has made clear, the Sexual Offences Act 2003 contains a number of offences that specifically target any sexual activity between a 16 or 17-year-old young person and a person who holds a defined responsibility of trust in respect of that young person, even if such activity is consensual. Those offences were designed to build on the general child sex offences in the 2003 Act, but they are defined to target situations in which the young person has considerable dependency on the adult involved, often combined with an element of vulnerability.
It is clear from the debates that took place in 2003 that the House was wrestling then, as indeed it is invited by the hon. Lady to wrestle now, with the balance that she struck. How do we broaden the offence to catch those people who are truly abusing their trust without making it so broad that, in effect, we raise by stealth the age of consent? She raises it as if to dismiss it, but it is none the less an extremely important consideration, because I venture to suggest that were the House to frame the offences too widely, in effect criminalising any person over 18 having sex with anyone aged 16 to 17, that would neither be in the public interest, nor would it meet the will of Parliament.
However, for all of that, the Government recognise that the current law may not be sufficient—this is the point I was making last year, and I reiterate it today—in dealing with situations in which an adult abuses their position of trust in order to exploit a 16 or 17-year-old, and that in the past victims have felt that the law was inadequate in this area. It is because the protection of children and young people from the scourge of sexual abuse and exploitation is one of this Government’s top priorities that we have looked at the issue in very great detail—in unapologetic detail. Making certain that the law continues to be effective in providing that protection is not just our priority, but our duty.
As the hon. Lady indicated, in 2019 we began an exhaustive review of the law on such abuses of positions of trust, to ascertain whether it is working effectively and to ensure that young people are fully protected. In essence, we were considering whether the House had got it right in 2003 or not. To ensure that young people are adequately protected, the review has considered a range of situations and settings in which a young person could be considered to be at risk from an adult holding a position of trust, including those that she has referred to in relation to religion and faith. But my goodness, that is not the extent of it, because as soon as we start down that road, plenty of other contexts hove into view, and that is what we need to consider with care.
A wide range of stakeholders were consulted to ensure that we developed a thorough understanding of the issues before establishing the best way forward. For example, across the youth and criminal justice sectors, the review engaged the police, the Crown Prosecution Service, sports bodies, victims’ groups, charities and religious organisations to discuss concerns around how well the law is working to protect young people against those seeking to abuse their power in this way.
In the area of faith and religion, to which the hon. Lady referred, we engaged key groups such as the Anglican dioceses of Chichester and Lincoln, the Board of Deputies of British Jews, academics, Gardens of Peace, Hindu Council UK, Marriage Care, Sikh Council UK and the St Philip’s Centre. I could go on, but I do not want to trespass on the patience of the House. With regard to those involved in the sporting sector, the review team heard from a very broad range of stakeholders.
Since the review, we have continued to engage with those stakeholders, including the hon. Lady and, indeed, my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch). I was grateful to the hon. Lady for mentioning my hon. Friend—[Interruption.] The hon. Lady is giving a thumbs-up, so Hansard can record that. My hon. Friend has done tremendous work, and the Lord Chancellor and I met her and the hon. Lady last year.
The discussions that we have had have been candid and wide-ranging, and I am very grateful for that. A number of themes emerged during the engagement that go beyond the law in this area and are important for us to address. Let me make this point clear: almost everyone agreed that, whatever we change in the law, we will need a more broad-based spectrum in our approach to dealing with this. We need better provision of education; we need consideration of the effectiveness of the Disclosure and Barring Service system in practice; we need to raise awareness and understanding of what grooming and genuine consent really look like; and we need the measures that need to be put in place to protect young people from this type of abusive behaviour. I make that point because sometimes in this House we can be guilty of assuming that changing legislation fixes everything. It rarely does. It is important, of course, but it is rarely the complete answer.
A key topic raised with us was, of course, whether a change in the existing positions of trust legislation was required in order to best protect young adults from those who sought to use their position of power for sexual purposes. Many of those we heard from agreed that any change or reform of the existing laws raised difficult and complicated issues. There was a clear concern from some stakeholders that any broad or sweeping new definition could raise the age of consent by stealth. The risk is that if we go too far in one direction, the pendulum may swing all the way back in the other direction. Who will be the collateral damage in all this? Young people. That is why we proceed with care.
Conversely—I think that the hon. Lady will find this point more to her liking—there were those who said that drafting the law too narrowly, or perhaps by simply listing roles or jobs to be considered as positions of trust, in effect adding to the list, could create loopholes or definitions that could be easily exploited or circumvented by abusers. That is why we have to take care.
It is fair to say, however, that most stakeholders felt that a change in the law was required, and I can see the merits of change. It was made clear during the review that any legislative changes would need to be bolstered by changes outside the criminal law in order to ensure an effective overall approach to safeguarding young people.
Let me conclude, however, by saying this. The Government are very sympathetic to concerns that have been raised throughout this process—not just sympathetic but, as I indicated in words that the hon. Lady was kind enough to repeat back to me, we agree that it requires a clear, considered and decisive response. We are continuing to look at how the law might be strengthened in this area, and as I indicated at the beginning of my speech, I hope to set out our plans very shortly.
Finally, I thank all those hon. Members who have contributed to the discussion of this sensitive topic. I am grateful to the hon. Lady, I am grateful to other colleagues in the House, and I am grateful too for the House’s patience as we consider our next steps and for its understanding of the need for care and sensitivity in approaching this important issue.
Question put and agreed to.