[Credit: Hannelie Grobler]
Jubilee Centre, September 2005
The Jubilee Centre is publishing a new report on sexual offences reform in the light of biblical law in the next few months. The report is written by Jonathan Burnside. In the first of two articles, we look at the present situation and the underpinnings of the Sexual Offences Act 2003. In the next issue of Engage, we lift the lid on some of the relevant material from biblical law, including Leviticus 20, and consider how this challenges the present consensus.
The Home Secretary began the process of reforming sexual offences in England and Wales with the establishment of the sex offences review group in 1999.
The Sexual Offences Act 1956, the last major piece of legislation in this area, was increasingly felt to reflect the social attitudes and roles of men and women in the nineteenth century rather than those of the twenty-first. Most of the recommendations of the Sexual Offences Review team were ultimately adopted into the Sexual Offences (Amendment) Act 2001 and the Sexual Offences Act 2003 (hereafter ‘the Act').
Consent, Equality and Protection
CONSENT Consent undergirds the whole of the Act because its underlying goal is to protect persons from non-consensual sexual activity. The Group drew expressly upon the Law Commission's policy paper Consent in Sex Offences and took the view that: ‘the criminal law is not an arbiter of private morality but an expression of what is needed to protect society as a whole.' The result is a structure of sexual offences that is based on respect for private life and thus ‘broadly permits consensual acts in private'.
This reflects the belief that consensual sexual acts between adults in private are ‘harmless', whereas sexual acts that are not consensual, or where consent is not legally valid (i.e. involving children and other ‘very vulnerable people') are seen as ‘harmful'. Concern for consent is entwined with the values of privacy and autonomy, whilst lack of consent is entwined with paternalist concerns about harm and welfare.
Consent is defined as agreement by choice on the part of a person who has ‘freedom and capacity to make that choice'. It follows that a grossly impaired capacity is usually sufficient to negate consent. For example, a person who has been made insensible through drink or drugs cannot give consent. The Act provides a new list of circumstances in which it is presumed that consent is unlikely to have been given (e.g. violence or fear of violence, state of sleep or unconsciousness, unlawful detention and so on). Rape is the typical case of non-consensual sexual activity.
Consent is central to modern ideas about individual freedom and ‘cultural liberty', making the Act a typically late-modern piece of legislation.
EQUALITY So far as possible, the Act does not discriminate between men and women nor between those of different sexual orientation. As David Blunkett stated in the House of Commons in 2002: ‘Criminalising acts between homosexuals that are not against the law for heterosexuals goes against the principle of equality and previous reforms.'
As a result of this concern for equality, all offences in the Act are gender neutral in their application unless there is good reason to do otherwise. This meant abolishing a number of homosexual offences, including gross indecency between men, other forms of consensual same-sex activity and soliciting by men. The Act was accordingly hailed in 2002 by an Independent editorial for bringing an end to what it described as ‘the persecution of consensual gay sexual conduct'.
PROTECTION The Sex Offences Review Group took the view that the right balance to strike between the principles of autonomy and welfare was a structure of sexual offences that ‘broadly permits consensual acts in private but is effective against force, coercion and harm'. Consequently, a third major theme of the Act is the protection of vulnerable groups, principally children and the mentally disordered.
The Act provides new protections for children by creating a bundle of offences concerned with ‘abuse of a position of trust' in relation to any person under 18 years of age. Those in positions of trust include adults who look after persons under 18 who are accommodated and cared for in an institution. The Act provides still further protection by introducing a new bundle of ‘familial child sex offences' governing sexual activity within the family. The traditional blood tie of incest is replaced by a wider range of relationships. In doing so, the Act attempts to reflect the looser structure of modern families and protect the victims of sexual crimes that take place within them.
Protection of others who are more vulnerable, especially the mentally disordered, was also considered necessary. The Group found that many mentally impaired people regarded sexual abuse as a normal part of their lives. The fact that the mental disorder impedes choice connects the theme of protection with that of consent.
The social context of the Act
What has happened to make radical changes in our approach to sexual offences appear both necessary and desirable? This is a large and complex question, but we can identify some contributory factors.
‘SEXUAL PROPAGANDA' AND CHILDREN We are continually bombarded with ‘sexual propaganda'. This masquerades as a form of self-realisation, but its shadow-side takes the form of rising sexual and relational disturbance (including increased teenage pregnancies and abortions).
Another trend is the way in which children are increasingly sexualised in our society, particularly in consumer contexts. In 2002 Kidscape, the child protection charity, led a high-profile campaign against a high-street store selling G-strings for pre-teens decorated with a cherry and the words ‘eat me'. Although the Sex Offences Review Group wanted to create ‘a framework that protects the weaker members of society…', nothing was said about this type of commercially-organised sexual exploitation .
‘PLASTIC SEXUALITY' Anthony Giddens claims that ‘… late modernity has experienced a free-floating ‘disembodiment' of sexuality (‘plastic sexuality'): [that is] a sexuality that has been freed from its binds to reproduction .'  It is claimed that this liberation ‘has resulted…in a change in relations between sexes, a striving for relationships that are no longer based on the gender hierarchy of the past.'  Kleinhans argues that the plasticity of inter-gender sexuality is also mirrored along the child/adult divide: ‘Contemporary disembodied sexuality poses a great challenge to sexual relations between children and adults…'.  By eroding the gender hierarchy of the past, we have decimated the wall that ‘keeps sexuality away from children'. The rise of plastic sexuality and the consequent changes in gender roles drives concern for consent and equality – and thus legislative change. But it also helps to explain why we have become neurotic about sex – and why we want more legislative controls.
FORMAL CONTROLS In sociological terms it could be argued that a lack of informal social controls creates demand for increased formal controls, such as proposals to hand out free condoms and the ‘morning-after pill' in secondary schools and, most controversially, to fund birth control clinics for 11-year-olds. The government also proposes to offer teenage girls easier termination for unwanted pregnancies. At the same time, however, it remains the case that neither government nor ministers have much more than a minimal capacity to affect the most personal of choices, namely sexual behaviour.
CONSISTENT THINKING? There is a lot of confusion about sexual ethics and a lot of double thinking regarding sexual morality. This can be seen in the way that sex is increasingly treated as trivial or casual while paedophilia, child sex abuse, rape and internet pornography cause increasing alarm. The lack of appropriate boundaries creates a sense of free-floating anxiety about where the boundaries actually are.
‘Ironically, the same parents who see nothing wrong in allowing little Jane to dress as Britney-in-the-making will forbid their children (boys and girls) from taking the bus to school unaccompanied, ban them from playing out of doors and generally circumscribe their movements as insurance against the bad adult world out there'. 
Although there are inconsistencies, now that many homosexual offences have been abolished by the Sexual Offences Act 2003, the logic of the current climate of ‘sexual diversity' suggests that the next taboo to fall may be bestiality. It is claimed that, just as black persons, women and homosexual persons have undergone ‘legal evolution' to the point where they now enjoy certain legal rights and protections, so animals are undergoing a similar process. This seemingly extreme position shows us what we are left with when ‘plastic sexuality' morphs to a new set of contours.
Longley writes: ‘Judaeo-Christian sexual morality and all the conventions that supported it have been dismantled and nothing has been put in their place. It is easier to address the symptoms, even if that proves a hopeless task.' 
We will consider these Judaeo-Christian attitudes in the next article and discover that, like modern law, biblical law reflects a concern for consent, equality and protection. However, we will see that biblical law offers us a different perspective. Consent is not merely a matter for the actors involved in the sexual behaviour, but goes wider to include others who are affected. Whereas modern law identifies certain classes as morally indistinguishable and therefore ‘equal' (e.g. no distinction between heterosexual and homosexual intercourse), we will see that biblical law builds its idea about equality on a different set of moral distinctions. And whilst modern law properly focuses on protecting children and other vulnerable persons, biblical law goes much further to consider the protection of the family and society as a whole. In addition, we will see that biblical law knows of further categories within which to structure sexual offences, including a concern for order and the good of the Creator's original intent. We will find, in short, that biblical law presents us with a coherent sexual ethic – and a worldview we have lost.
Anthony Giddens, The Transformation of Intimacy: Love, Sexuality and Eroticism in Modern Societies , Polity Press, 1993.
 Martha-Marie Kleinhans, ‘Criminal justice approaches to paedophilic sex offenders', Social and Legal Studies, 11(2), 2002, pp.233–255.
 Cristina Odone, ‘Sexy kids: How we exploit our children', New Statesman, 15 July 2002, pp.18–19.
 Clifford Longley, ‘Serious fault lines in our attitude to sex', The Times, 4 August 2000, p.23.