§ Order of the day for the House to be put into Committee, read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Bishop of London.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Age of consent to be sixteen years in cases of indecent assault. 43 & 44 Vict. c. 45.
§ 1. Section two of the Criminal Law Amendment Act, 1880, shall be read and have effect as if there were inserted therein the word "sixteen" instead of the word "thirteen."
§ *THE LORD CHANCELLOR (VISCOUNT HALDANE) moved to leave out Clause 1, and to insert a new clause. The noble and learned Viscount said: My Lords, the effect of the proposal in the Bill, if it were to pass, would be that carnal knowledge of a girl under eighteen would be a criminal offence, and I desire to draw your Lordships' attention to the position in which the matter stands. But before I do that I wish to say a word about the manner in which the Government have approached the consideration of this Bill. Unquestionably we are face to face with great social evils, which have existed for long, which have been imperfectly dealt with, and with which the time has come, with the rising standards of public opinion, when we should make further efforts to grapple. That I say not on any mere ground of sentiment. The progress of knowledge is showing us that venereal disease and promiscuous relations between the sexes unrestrained are the cause of much of the misery which afflicts a large number of people in this country, misery of which the worst feature is that the innocent suffer—the children suffer, the mothers suffer, the public suffers—and consequently the whole of the questions which are touched here and many other questions which are not touched here are attaining to a prominence which they have not had before. The Government have therefore felt that this Bill is one which deserves sympathy and support wherever they could give it sympathy and support.
26§ On the other hand we have, of course, had to watch these matters very closely. There are a large number of people who feel these things very strongly, who get a particular case on which they are entirely right, and who, ignoring the fact that besides that particular case there are ninety-nine other cases which are equally likely to happen, legislate for that one case regardless of the grievous injustice that they do in other instances. Now what is proposed by Clause 1 of this Bill is this. If a girl under sixteen consents to an act of sexual intercourse or even instigates it, that still is to be taken to be an offence committed without her consent, and therefore to be treated as an indecent assault.
§ THE EARL OF SELBORNENot intercourse.
THE LORD CHANCELLORThat is one case of it. But the difficulty is still more glaring where there is no intercourse and where the girl has herself instigated what has taken place. There you are calling that an indecent assault which is not an indecent assault at all, but something which has taken place with the assent, and, it may be, at the instigation of the girl herself. When you pass laws of that kind, if you do pass them, there is one result which invariably follows. Human nature being what it is, juries decline to convict and your law becomes inoperative, and I think one of the most, lamentable features is that you should find that the tribunals will not enforce your law.
Consequently we have looked at this question as raised by the right rev. Prelate from a more general point of view. We cannot agree with him that it would he right to make that an indecent assault which is not an indecent assault at all. It is an indecent assault, in the case of a girl under thirteen, to have intercourse or to have something less than intercourse, because it is presumed that she is a child and does not know what she is doing. But with a girl nearly 16 the state of things is quite different. The precocity which some girls at that age exhibit who are habitual prostitutes is very remarkable. I have not thought it right to confine myself merely to the valuable advice that I have received from the Home Office, but I have been in communication with one of the most experienced London magistrates, before whom an enormous number of these cases have come. I have 27 also had the personal advice of the Public Prosecutor, and I have seen several individuals who are engaged in the administration of the Criminal Law in London and who have had special experience with these matters, one or two of them men of very great authority as well as very great experience. They all advise me to the same effect, that there is a real evil to be dealt with but that it should be dealt with in a different fashion from that which the right rev. Prelate proposes.
I therefore propose to leave out Clause 1, and to insert the new clause which I have put on the Paper and which I will explain very briefly to your Lordships. First of all, we hold it plain that if you are going to make it an offence to commit an act of indecency with a girl just under sixteen, the offence is one which ought not to apply to a boy under sixteen. Remember, this is not a case of consent at all; it is a case in which the mere act is in itself an offence; and as a girl at that age is presumably more precocious than a boy—she very often is—to make it an offence irrespective of the age of the person who commits it would, we think, be wrong. We therefore take the age of sixteen under which, as I suggest, a boy should not be convicted under the Statute. Then we do not use the term "indecent assault" at all. We say, "Any person over the age of sixteen who commits any act of gross indecency with a girl of the age of thirteen or over and under the age of sixteen," etc. We say "thirteen or over" because under thirteen it is already provided for by other Statutes, notably the Criminal Law Amendment Act, 1885. But between thirteen and sixteen we are creating a new offence to meet the case which the right rev. Prelate has made, and which is a real case with which we think we are dealing in the right way. The offender will have a defence that he had reasonable cause to believe the girl was of or above the age of sixteen, but the limitation of that is that if the girl is under fourteen that defence will not avail hint. We think that if she is under fourteen he ought to know it, and should take the risk of it. Therefore if the girl is under fourteen, as I say, the defence of her appearance being misleading will not avail.
We put in a proviso that "No person shall be found guilty of an offence under this section upon the evidence of one person only, unless that witness is corro- 28 borated in some material particular by evidence implicating the accused." Those of your Lordships who have had experience of Quarter Sessions know what corroborative evidence is and how it is forthcoming, and you also know the danger there is in those cases of imaginative charges. Then we put in a proviso which is meant to have this effect. Suppose a girl turns out to be under thirteen, then you cannot convict under this law but you can convict under the old law and its following analogies, notably the analogy of the Incest Act. We enable a conviction to take place if it is proved that the offence comes under the existing law although it is not the offence charged in the indictment. That, as I say, is a subject on which there are a good many precedents. Then there is this further safeguard. It is quite right that a man should be arrested when he is seen committing an offence of this kind, and it is quite right that he should be arrested if the charge is brought on the belief that the charge is true. But when you get further I am advised by those of great experience that the danger of this class of case is so great that it is expedient that, after the case has come before a justice of the peace, the Public Prosecutor or the Attorney-General should be consulted and that his consent should be given to further proceedings taking place. That is obviously put in to deal with the danger of blackmail, and the large class of dubious cases which always arise in connection with this legislation. That is the substance of what we propose, and, if I may venture to say so to the right rev. Prelate, I think it is likely to be a much more effective clause for attaining the object he has in view than the clause in his Bill as it stands. I therefore move to leave out Clause 1 with the view to substituting the new clause which I have just described to your Lordships.
§ Amendment moved—
§ Leave out Clause 1 and insert the following new clause:
§ Acts of gross indecency with girls between 13 and 16.
§ —(1) Arty person over the age of sixteen who commits any act of gross indecency with a girl of the age of thirteen or over and under the age of sixteen shall be guilty of a misdemeanour, and liable, on conviction, to imprisonment, with or without hard labour, for a term not exceeding six months, unless he proves that he had reasonable cause to believe that the girl was of or above the age of sixteen years, and that she was, in fact, of the age of fourteen or upwards.
29§ Provided that no person shall be found guilty of an offence under this section upon the evidence of one person only, unless that witness is corroborated in some material particular by evidence implicating the accused.
§ (2)—(a) If, upon the trial of any indictment for an offence under this section, the jury are satisfied that the defendant is not guilty of an offence under this section but is guilty of indecent assault, they may acquit the defendant of the first-mentioned offence and find him guilty of indecent assault; and
§ (b) If upon the trial of any indictment for indecent assault upon a girl, the jury are satisfied that the defendant is not guilty of that offence but is guilty of an offence under this section, they may acquit the defendant of indecent assault and find him guilty of an offence under this section; and in every such case the defendant shall thereupon be liable to be punished as if he had been convicted upon an indictment for the offence of which he is so found guilty.
§ (3) If any person is charged before a justice of the peace in England or Ireland with any offence under this section, no further proceedings shall be taken against that person without the consent of the Attorney-General or the Director of Public Prosecutions, except such as the justice may think necessary, by remand or otherwise, to secure the safe custody of that person.
§ (4) The second column of the First Schedule to the Summary Jurisdiction Act, 1879, shall include the offence constituted by this section, and there shall be inserted accordingly in that column the words "committing any act of gross indecency with a girl of the age of thirteen or over and under the age of sixteen."—(The Lord Chancellor.)
THE LORD BISHOP OF LONDONMy Lords, I must first thank the noble and learned Viscount for the great care and trouble he has undoubtedly taken over this matter. I understood from him at the Second Reading that he was entirely friendly in spirit to my object; and I am not only grateful to him for the trouble he has taken, but I wish I could see my way to accept the Amendment which he has brought forward. However I must state one or two points on the other side. In the first place, I want to remind your Lordships of the great prevalence of these cases. I quoted one or two facts in moving the Second Reading which I would like to recall to your Lordships' memory. It is not, perhaps, fully realised how distressingly common these cases of criminal assault on children and young girls are. This is what I said on the Second Reading—
Mrs. Bramwell Booth speaks of the Salvation Army receiving 316 girls under 16, who had been 30 so assaulted, in twelve months. The National Society for the Prevention of Cruelty to Children has for the last six years had an annual average of 400 cases of criminal and indecent assault reported to them. In the Church of England we ourselves have many homes full of them. From many other sources and from the reports in the newspapers it is clear that these figures cannot be doubted, and that they do not in any sense give an adequate idea of the prevalence of such assaults.Then I take the strong consensus of opinion which there is in support of the actual Bill as it stands. I think the Lord Chancellor will admit that the Amendment which he has proposed does not raise the age to sixteen, whereas in support of the Bill as it stands I have received resolutions from all over England. I have laid on the Table a petition from Peeresses and wives of Spiritual Peers. Here are petitions from 400 associations, some representing 100,000 women and girls, one alone consisting of 25,000 factory girls, all supporting the Bill as it stands.The Lord Chancellor's Amendment, waters my clause down, and by mentioning the age of fourteen I fear that its result will be to raise the age of consent only to fourteen. Then I should like the noble and learned Viscount to consider whether the definition of "gross indecency" is not vague. The meaning of an indecent assault on a child has been understood for a long time. I hope the Lord Chancellor will later on explain what "gross indecency" means. Then with regard to the defence of ignorance. I have taken counsel with others on the other side of the Atlantic, and I find that the defence of ignorance is not admitted in the United States, nor, I believe, in any other country. Are not our juries to be trusted as much as are the juries in other countries Therefore on the ground that the great number of these cases makes a more stringent clause than the Lord Chancellor's essential, on the ground that I have a vast amount of public support for the clause as it stands, and on the ground that the excuse of ignorance is not allowed in other countries with regard to this offence, I feel bound, I am sorry to say, to resist the clause which has been moved by the Lord Chancellor, although I am certain of the friendly spirit in which it has been so brought forward.
§ LORD PARMOORMy Lords, the subject-matter with which we are dealing is one of the most difficult and anxious 31 with which Judges have to deal when they are trying these criminal cases. I am bound to say that in my opinion the Bill as it stands would create great difficulties, and I am going to explain to your Lordships in a few words why in the main I hope that the Amendment of the Lord Chancellor will be adopted. I wish to say this at the outset in reference to what the right rev. Prelate has said. I think that amendments in our Criminal Law should always be made in relation to those who have experience in its administration, and not in reference to outside resolutions got up by various bodies who may very well be carried away by sentimental notions but who do not appreciate the real underlying difficulties. One of the underlying difficulties in dealing with crimes of this character is not only, as the Lord Chancellor has said, lest you should not get convictions when convictions should be given by juries, but there is another incident, a very painful incident, and that is the incident of blackmail, particularly blackmail levied on very young people under conditions which either make their lives a torture or wreck their whole future.
All the conditions which the Lord Chancellor proposes to introduce in order to have a proper safeguard are absolutely essential, and I make that statement from having had considerable experience in administering this side of the Criminal Law, which is always a matter of great difficulty. In the first place, I think the age under which no young male person should be found guilty under the Act is properly the age of sixteen. It would be a very bad principle and I do not believe it would afford the real protection that is desired if you were to bring young boys into Court charged with offences of this kind who themselves might be only eleven or twelve years of age. I deprecate, and I know it is a matter which grand juries deprecate, the unnecessary discussion particularly in reference to young people of these sexual matters, which are undoubtedly difficult in themselves but which we do not want to bring unnecessarily before the minds of young children.
The second point is corroboration. I think it is essential that the principle of corroboration should be inserted, and I hardly see how you can administer a law of this kind unless you introduce the principle of corroboration. Without corro- 32 boration you would merely have the statement of some very young girl which would be denied, of course, on the other side by the person charged. In those circumstances I think it would be grossly unfair to blight, perhaps, the whole future of a young fellow thus charged unless there is some corroboration of the charge made against him. It is, of course, a common place in all crimes of this kind that it is very unlikely that any third person is immediately present, and therefore you may merely have oath against oath, or opinion against opinion. But before you convict a young man who is only about the age of sixteen of a crime which may blight his whole future, I think it is essential for the fair administration of the law that some corroboration should be rendered necessary.
The next point is one of rather wider meaning. Personally I am not in favour of what is called the method of private prosecution in this country. I prefer, for instance, the methods in most other countries, certainly the method in Scotland where you cannot have any private prosecutions at all; because very often private prosecutions are conducted for indirect motives which bring discredit upon the administration of our Criminal Law. I think the Lord Chancellor is quite right when in cases of this kind he makes it a condition—I think I am right in this, and no doubt he will correct me if I am wrong—that proceedings shall not be carried to the point of prosecution without the assent of the Attorney-General or of the Director of Public Prosecutions. In that way you do introduce a safeguard.
This matter is to my mind a very complicated one. I submit that if you are making changes of this sort in the law you ought to make them so that every one can understand what the law is. I have taken very great care to study the Lord Chancellor's proposed new clause, and to my mind it is not clear, particularly having regard to the law as it stands at the present moment. In substance "gross indecency" is a new phrase at the present moment. One does not wish, of course, to go into matters of this kind, but at the present moment that phrase is only applied where there is indecency between males. In the Criminal Law as it stands it is applied to that class of case and to that class of case only. Therefore as applied to the conditions of 33 this Bill the term "gross indecency" is undoubtedly new, and I feel very doubtful whether a Judge who had to explain to a jury whether they ought to convict or not could say what is implied in this term "gross indecency." It would be very difficult to do and to hold the balance quite fairly between the complainant on the one side and the person charged on the other. Therefore I hope that before the Report stage the Lord Chancellor will carefully consider whether the term "gross indecency," which is introduced for the first time in an Act of this sort, is a term which is properly appropriate having regard to the existing condition of our Criminal Law.
This leads me to what, in my mind, is a curious anomaly in the Lord Chancellor's clause. In subsection (2) (a) it is provided that if, upon the trial of any indictment for an offence under this section, the jury are satisfied that the defendant is not guilty of an offence under this section but is guilty of indecent assault, they may acquit the defendant of the first-mentioned offence and find him guilty of indecent assault. Now I want to put this to the Lord Chancellor. It seems to me that an indecent assault necessarily implies gross indecency; but the suggestion here is that a person might not be guilty of gross indecency but yet can be guilty of indecent assault. That appears to be a contradiction in terms, which I mention in order to emphasise the difficulty that I feel with regard to an express on of this character.
But I want to say something more, looking at it again from the point of view of a Judge trying to direct a jury. A person who is guilty of an offence under subsection (1) of this clause, if I understand it rightly, is liable to imprisonment for six months; but if a person is found guilty of indecent assault, he is liable to be imprisoned for two years. Therefore a young fellow charged with an offence for which the maximum penalty is six months might find himself under this clause found guilty of an offence for which he is subject to the penalty of two years. I do not think that can be intended, but as the Lord Chancellor's clause stands it would have that illogical and impossible result. I call attention to it because, in my view, these questions of Criminal Law amendment want careful attention. Although I am, speak- 34 ing generally, in favour of what the right rev. Prelate proposes, I should always oppose a private Member's Bill, because I do not think that amendments to our Criminal Law ought to be introduced, either in this House or in another place, without the expert assistance which the Government have at their disposal.
Then under subsection (2) (b) of the Lord Chancellor's clause we get the alternative proposal— namely, that a person charged with indecent assault may be found guilty of gross indecency. There, again, I am not satisfied whether that is right. We all know what is meant by "assault." A young fellow is charged with indecent assault, and he brings forward evidence and proves to the jury that there is no case of indecent assault at all. In those circumstances he ought not to be liable to be convicted of some other charge which is not made against him. In dealing with juries in these cases, even if you have a simple issue, it is a very important matter to be certain that they are acting fairly and justly in a certain case; but if you have a system under which you can tell the jury that they may find the prisoner guilty of some offence with which he is not charged, I think that introduces an unfair complication into the administration of our Criminal Law. There is one point which I do not overlook, and that is that subsection (2) (a) and (b) may be merely meant to cover a ease where the particular charge is shown to be in connection with a girl who is under thirteen, which might be the case. If it is only that the Lord Chancellor wishes to make that point clear, I should assent to it. But, as a matter of fact, the actual clause goes a good deal beyond that point. I am sorry to have detained your Lordships for so long a time, but I feel that these matters of criminal administration are of the greatest possible importance, and I am sure that while your Lordships, on the one hand, want to give protection against these offences, you desire, on the other hand, to give protection against young fellows being blackmailed or unfairly convicted of offences of such a character.
§ THE MARQUESS OF SALISBURYI should like to ask a question, as I think there appears to be some misunderstanding. As I understand it, there is no difference of opinion, as far as the question of indecency is concerned, between the Lord 35 Chancellor and the Bishop of London with respect to the age, but from the right rev. Prelate's speech your Lordships would have gathered that there was a difference between himself and the Lord Chancellor with regard to this particular offence. I understand that they are both agreed as to the age of sixteen.
§ THE MARQUESS OF SALISBURYThe particular offence with which this Amendment is dealing is not seduction.
§ LORD PARMOORMight I point out, with regard to the age of sixteen, that it is quite true that in one case you have the same age in the two clauses. But by the Lord Chancellor's clause no one can be convicted who is under sixteen, whereas under the right rev. Prelate's clause he can be convicted if he is of any age.
§ THE MARQUESS OF SALISBURYI am not speaking of that. I am speaking of the age of the girl in respect of indecency. The Lord Chancellor, no doubt, deals with it in a slightly different way, but so far as the age is concerned the right rev. Prelate and the noble and learned Viscount are agreed.
§ THE MARQUESS OF SALISBURYPerhaps the Lord Chancellor will make the point clear.
THE LORD CHANCELLORI will endeavour to make it clear. According to the clause that I propose, the law will stand as it does at the present time under which an offence committed against a girl under thirteen is a very serious offence indeed. That is intact. The new offence begins at thirteen and goes to sixteen.
§ THE MARQUESS OF SALISBURYLike the Bill itself does?
THE LORD CHANCELLORYes; just as in the right rev. Prelate's Bill. The only difference between the right rev. Prelate and myself as regards that age is that he calls something an "indecent assault" when there may be consent. I call it an "act of gross indecency" and make it a new offence. I think I have made that quite clear.
§ THE MARQUESS OF SALISBURYYes, that is quite clear.
THE LORD CHANCELLORWould the noble Marquess desire that I went on with the further points?—or perhaps I will deal with them later.
§ THE EARL OF SELBORNEI should like to get this point quite clear. At the present moment the law knows no such offence as "gross indecency."
§ THE EARL OF SELBORNEThe offence which the law does know is indecent assault; and the law about that is that it shall be no defence to a charge on indictment of an indecent assault on a young person under the age of thirteen to prove that there was consent to the act of indecency. The right rev. Prelate proposes to raise that age from thirteen to sixteen; he proposes the same, that it shall be no defence to a charge of indecent assault on a girl of sixteen or under to prove that she consented to that act. Now if the Lord Chancellor has his way and Clause 1 of the Bill is omitted and his Amendment substituted, that change in the law will not take place. A man could not be convicted if he was able to plead that the indecent assault was committed on a girl between fifteen and sixteen and that she had consented.
§ THE MARQUESS OF SALISBURYHe would be convicted of "gross indecency" then.
§ THE EARL OF SELBORNEYes, but the offences are not the same obviously, because the penalty for gross indecency is to be six months whereas the penalty for indecent assault may be two years. Therefore there is a very material difference between the two offences. The Lord Chancellor has proposed to constitute this new offence of "gross indecency" because he thinks there is a gradation in the crime, and I do not wish to say a word against his proposal. I am not competent, as is the noble and learned Lord, Lord Parmoor, to discuss the merits of such a proposal. What I protest against is the effect of the Lord Chancellor's Amendment, which will be to prevent raising the age of consent from thirteen to sixteen. We 37 want the age of consent to be raised from thirteen to sixteen in these cases of indecent assault. There really is a very strong case for so raising the age, because the law does not allow the plea to be made that a girl of under sixteen consented to an attempt at carnal knowledge. That is not allowed as a plea. But, as the Lord Chancellor pointed out just now, the line between an indecent assault and carnal knowledge is often very hard to draw. He actually used the word "intercourse" himself when he was describing an indecent assault. I say that if the law does not allow a girl, who after all is only a child, of sixteen and under to consent to an attempt at carnal knowledge, neither ought it to allow her to consent to an indecent assault; or, rather, the man should not get off because she consented in the case of an indecent assault any more than in the case of an attempt at carnal knowledge. I say this without any difference of opinion from Lord Parmoor as to the great importance of corroboration, and also as to the distinction which he drew between the case of a man and the case of a boy who is himself a mere child.
THE LORD ARCHBISHOP CANTERBURYMy Lords, only want to say a word with regard to a phrase which fell from the Lord Chancellor and from Lord Parmoor about corroboration. As far as I know, no one who is advocating the raising of the age and the changes that we desire to see has the slightest objection to the Judges insisting upon what they think right in the way of corroboration of the charges in the indictment. That is not our point at all, and I am particularly anxious that it should not be mixed up with the other side of the matter. With regard to corroboration, we have not a word to say about the Lord Chancellor's Amendment. We do not want your Lordships to be prejudiced by that point which is pressed upon us by high legal authority, because it is a point upon which we do not require any pressure at all.
*LORD GORELLMy Lords, may I add one word with regard to the question of gross indecency As I understand, that expression is only known at present in the law as relating to an offence between male persons of a graver character as far as the indecency is concerned than an indecent assault; and I think I am right—the noble and learned Viscount will correct me 38 if I am wrong—in saying that it is a question for the jury as to whether the indecency is gross or not. I think, somewhat on the lines raised by the right rev. Prelate and Lord Parmoor, that there are possible difficulties in the use of this expression, and I should like to know whether it would not be possible to describe an offence such as the noble and learned Viscount contemplates without using words which are at present used in a technical sense in connection with an offence such as I have referred to and which may possibly raise difficulties in that direction. There is one other point, emphasising what has fallen from Lord Parmoor, with regard to the importance of the third subsection of the noble and learned Viscount's Amendment if the third proposal in the Bill of the right rev. Prelate is adopted. I venture to think that the proposal of the noble and learned Viscount, if that proposal is admitted, might be made even more important. It would be useful in preventing applications for prosecutions which are really fraudulent, or which are only used to enforce bastardy proceedings and not with a bona fide intention of assisting the Criminal Law. I venture to think that if the proposal of the right rev. Prelate is adopted, this provision in the noble and learned Viscount's Amendment would be extremely useful in that connection.
THE LORD CHANCELLORMy Lords, I will endeavour to deal with some of the points which have been raised, and perhaps it will be convenient if I first deal with the point put forward by the noble Earl, Lord Selborne. His question was whether the clause as I propose it does not somewhat narrow the scope of the existing law, and he pointed out quite truly that at the present time intercourse, for example, with a girl under sixteen is illegal.
§ THE EARL OF SELBORNEOr attempt.
THE LORD CHANCELLORIntercourse with a girl under sixteen is illegal under the Criminal Law Amendment Act of 1885. We are dealing now, not only with cases of intercourse, but with something else. We are dealing with cases of indecency, which may be a shorter thing. At the present time, if a girl under thirteen has an act of indecency committed towards her, her consent is inoperative in law to justify the defendant. She is treated as a child, as what it fact to a great extent 39 she is, as one not knowing what she is doing; consequently the defendant cannot take any advantage of her assent. When you come to the age between thirteen and sixteen you are dealing with a very different class of case. Just under the age of sixteen there are a large number of prostitutes on the streets, deplorable as it is. The noble Earl opposite shakes his head, but I have had on this subject some of the most competent advice in London from people who are not only looking at one phase of the evil but at all phases. If you say that a thing is an indecent assault when there has been no indecent assault, when it has been the subject of invitation, do what you will, juries and tribunals will not convict in cases of that kind. That is why we have changed the character of the offence; but we have preserved all that is substantial, because we have made an act of indecency committed on a girl between thirteen and sixteen something which is itself an offence. We have made a difference, no doubt, between what is done to a girl under thirteen, which is very gross, and that which is done to a girl between thirteen and sixteen which is less gross, because it may be very fully consented to in the ordinary sense of the word. But still we have made it an offence, and at the same time we have met the point of which the noble Earl spoke and given a chance of redress against the evil which the right rev. Prelate has brought forward.
The next is the point about the phrase "gross indecency." My noble friend Lord Gorell suggested that it was a technical phrase, and that it was unfortunate to use a technical phrase here. He also said that it has been used in regard to offences between males in the Criminal Law Amendment Act. It is not really a technical phrase at all. I have had the advantage of the very best advice in using the words. What I am told is this, that indecency is something well understood, and that a jury as a judge of fact will quickly distinguish between indecency and indecency which is gross. There are other things which are obviously on the other side of the line. Nor is "gross indecency" a technical term. It is an expression which those who have had the most experience in administering this branch of the law consider best enables them to get a grip of the kind of evil which is to be dealt with.
40 The right rev. Prelate spoke of the introduction of the age of fourteen, but, if he will forgive me for saying so, that is not a good point. Fourteen is only introduced in this way. If a girl is under fourteen it is no defence for a person who committed the offence to say that he thought she was, and that she looked as if she were, over sixteen. If in fact she is under fourteen he cannot take advantage of the plea that her appearance was calculated to deceive. I do not think there is any danger of the expression "fourteen" cutting down the beneficial operation of the clause from the point of view of the right rev. Prelate.
Now I come to the other point which Lord Parmoor took. Lord Parmoor, if he will permit me to say so, made a speech which was of a particularly valuable kind, not merely for what he said but from its tone, and not merely from its judicial tone but the administrative tone which he brought to bear in examining the difficulty of this question. He spoke with knowledge of Quarter Sessions, and also with the knowledge of a man of the world; and he also spoke as one who seeks to amend the law in this direction but to amend it in a practical way. I entirely agree with what he said about hasty amendments of the Criminal Law. You have to go very carefully in making these amendments. Lord Parmoor pointed out that under my clause as it is drawn a boy, say, may be charged with an act of gross indecency, and yet the jury, acting under the alternative which the clause gives, can convict him of indecent assault. I gathered from the noble and learned Lord that he did not object to that if, for instance, it came out that it was really a case of a girl under thirteen and that the offender would have been prosecuted for an indecent assault upon a girl under thirteen if her age had been known. I gathered from the noble and learned Lord that he considered the subsection a good one if it covers that.
§ LORD PARMOORYes, that only.
THE LORD CHANCELLORI see the ambiguity to which my noble and learned friend pointed. I have already been in communication with the Government draftsmen, and I will see that at a later stage an Amendment is put down to make it different. The noble and 41 learned Lord meant the same as I did, but I think his criticism is a good one. That is, I think, all the assistance I can give your Lordships on this matter. We are dealing with topics which are difficult and obscure, but we are dealing with a very great evil, an evil with which we wish to cope, if possible, and the anxiety of the Government is to give such assistance
§ Resolved in the negative, and Amendment agreed to accordingly.
§ THE EARL OF SELBORNEIs it competent to move an Amendment to the Lord Chancellor's clause?
§ THE EARL OF SELBORNEThen it must be done at the next stage?
§ Clause 2:
§ Defilement, &c., of girls under eighteen. 48 & 49 Vict. c. 69.
§ 2. The Criminal Law Amendment Act, 1885, shall be read and have effect as if the word "eighteen" were inserted instead of the word "sixteen" in section five, subsection one, section six, subsection two, section ten, paragraph (a), and section twelve of the said Act. 42 as they can to the right rev. Prelate, within the limits of prudence, in framing a clause which will really have the effect that he desires.
§ On Question, whether the clause proposed to be left out shall stand part of the Bill?—
§ Their Lordships divided: Contents, 12. Not-contents, 52.
41| CONTENTS. | ||
| Canterbury, L. Abp. | Bryce, V. | Braye, L. |
| Brodrick, L. (V. Midleton.) | ||
| Selborne, E. [Teller.] | Llandaff, L. Bp. | Courtney of Penwith, L. |
| Shaftesbury, E. | London, L. Bp. [Teller.] | Manners, L. |
| Waldegrave, E. | Wakefield, L. Bp. |
| NOT-CONTENTS. | ||
| Haldane, V. (L. Chancellor.) | Halifax, V. | Glenconner, L. |
| Hutchinson, V.(E. Donoughmore.) | Gorell, L. | |
| Devonshire, D. | Haversham, L. | |
| St. Aldwyn, V. | Heneage, L. | |
| Bath, M | Herschell, L. [Teller.] | |
| Camden, if. | Kintore, L. (E. Kintore.) | |
| Lansdowne, M. | Addington, L. | Lucas, L. |
| Salisbury, M. | Ashby St. Ledgers, L. | Lyell, L. |
| Ashton of Hyde, L. | Monckton, L. (V. Galway.) | |
| Avebury, L. | Parmoor, L. | |
| Ancaster, E. | Balfour, L. | Pirrie, L. |
| Bathurst, E. | Barnard, L. | Ranfurly, L. (E. Ranfurly.) |
| Beauchamp, E. | Barrymore, L. | Rotherham, L. |
| Eldon, E. | Charnwood, L. | Sanderson, L. |
| Lauderdale, E. | Chaworth, L. (E. Meath.) | Silchester, L. (E. Longford.) |
| Russell, E. | Clonbrock, L. | Sinc air, L. |
| Desart, L. (E. Desart.) | Stanmore, L. [Teller.] | |
| Allendale, V. | Dunmore, L. (E. Dunmore.) | Strachie, L. |
| Churchill, V. | Ellenborough, L. | Sudeley, L. |
| Falkland, V. | Erskine, L. | Wynford, L. |
§
THE MARQUESS OF SALISBURY moved to amend Clause 2 so that it would read—
The Criminal Law Amendment Act, 1885, shall be read and have effect as if the word "eighteen" were inserted instead of the word "sixteen"
of the said Act.
§ The noble Marquess said: My Lords, I regret to see the Amendment which stands later in the name of the Lord Chancellor, in which he seeks to strike out what is, after all, the main object of the Bill—namely, the raising of the age of consent in the case of carnal knowledge from sixteen to eighteen. He, in fact, strikes at the most important part of the right rev. Prelate's Bill, and I cannot support the Lord Chancellor in that Amendment. It seems to me that public conscience demands the raising of the age now. 43 It is, of course, a very dangerous thing in matters of this kind to go in front of public opinion, but public opinion has been very pronounced about things of this kind, and I think it would justify the raising of the age from sixteen to eighteen. Therefore I regret that the Lord Chancellor has put down an Amendment by which he proposes to deal with the right rev. Prelate's Bill in the way I have indicated.
§ I realise that there will be hard cases which will have to be dealt with, and the Amendment which I am now moving is intended to deal with one particular class of hard case. Of course, the case which the right rev. Prelate particularly wishes to hit is that of a fully grown man who uses his influence over a girl who is little more than a child in order to rob her, of what is the most priceless possession she has, and the right rev. Prelate is asking Parliament, very rightly, to stop that. That is a case where it may be held that the aggressor is in such a position as to have so much influence over one who is much younger and more ignorant than himself, that they are not upon an equal footing, and that she consents really not knowing the extent of the evil which is being inflicted upon her. But the whole thing turns upon the fact that she is so young as not to be fully responsible for what she does when she consents. I do not say that she is not in one sense responsible, because when she has reached the age of sixteen she must know to some extent what she is about, but she is not aware of the tremendous loss which she is incurring by consenting to the attack of this aggressor. That is true.
§ But if it be true that you ought to protect her in the case where she is assailed by a man in this way, it does not follow that you ought to deal out the same measure when the aggressor is not a man but a boy. Every one of us knows that where it is a case of a boy, the boy may not be more responsible than the girl; indeed, he may be the less responsible; she may be the one who tempts and not he; therefore he requires to be protected just as much as she does. Take the case which must be present to your Lordships' minds, the case of a young prostitute who persuades a boy no older than herself to have intercourse with her. Well, it is the boy who is to be pitied. Is he to be made criminally responsible for that? I think your Lordships 44 will agree that justice demands that he should be protected just as much as the girl in the other ease ought to be protected. If we are to be logical, the person who ought to be sent to prison is the girl and not the boy, or both of them, but certainly not the boy only. It does seem to me that in a case of that kind we ought to introduce a saving clause. I have put the Amendment on the Paper, but I need not tell your Lordships that I am not particularly proud of the form in which it is drawn; it might easily have been drawn better. But I do not care in the least about that if the Lord Chancellor will accept this policy which we suggest to hint, that in the main the age should be raised to eighteen but that the hard cases should be saved by any form of words which either he or the right rev. Prelate prefers in order to carry that out. I would willingly accept any such form. But substantially I think that if the age is raised to eighteen, protection ought to be inserted in the case of boys under age. I have put it at under twenty-one, but in regard to that, of course, I should be quite willing to defer to your Lordships' better judgment. In the main, however, I submit this Amendment to your Lordships with some confidence.
§
Amendment moved—
Page 1, line 10, leave out from ("sixteen") to the end of the clause and insert:
of the said Act.")—(The Marquess of Salisbury.)
THE LORD BISHOP OF LONDONMy Lords, I feel great sympathy with what is in the noble Marquess's mind, and I am quite prepared myself at some stage in the proceedings to move a clause which would safeguard against the blackmailing of young men. But I ask the noble Marquess to consider whether his Amendment does not go much too far. It seems to me that if it is accepted as it stands we should almost by Act of Parliament be saying that any one under twenty-one years of age is free to do practically what he likes. I was prepared myself to meet this difficulty by a clause—I will bring it up on Report—to the effect that when both are under the age of eighteen they might be dealt with under the Children Act, which 45 would put them on probation. I see, of course, the objection to sending young fellows of eighteen or under eighteen to prison for two years. But nothing is such an educator as the law, and if they find out that the law does touch them, even with a light hand, nothing will raise the moral standard of our country more. If the noble Marquess's Amendment is accepted it seems to me, although that is not his intention—he would be the last person to suggest it—that an impression would get abroad that any one under twenty-one could do as he liked.
Might I say a word here about blackmail. The Lord Chancellor in his speech did not produce, and I do not think he can produce, any case of blackmail that has occurred since the age was raised from thirteen to sixteen. I am told that the whole case against the raising of the age from thirteen to sixteen was based on blackmail. This was the bogey that was brought out at every stage of the proceedings. At last, however, the nettle was boldly grasped and the age was raised, and no one has produced a single case of blackmail arising in consequence. Therefore while I am perfectly ready to admit the force of what the noble Marquess has said, I would ask the House not to be frightened too much by this bogey of blackmail. With regard to Lord Salisbury's Amendment, I am quite prepared, as I have said, to move a clause at a later stage of the proceedings by which when both are under eighteen they could be dealt with under the Children Act, which would put them under probation.
§ LORD PARMOORMy Lords, I hope very much that the Amendment which has been moved by the noble Marquess will be accepted. I have looked very carefully into the words of the Amendment—I was not in any way responsible for them—and they appear to me to carry out what his evident desire is. Of course, as to the drafting, as the noble Marquess has said, that is a matter which might be considered hereafter; but I hope that the principle involved in his Amendment may be accepted.
THE EARL OF MEATHMy Lords, as one who has been occupied for many years in social work, may I say one or two words. I entirely sympathise with Lord Salisbury in his desire to protect young boys, and I should be ready to vote for his Amend- 46 ment, as I think the right rev. Prelate said he would, if he would substitute eighteen years for twenty-one.
§ LORD BARNARDMy Lords, I venture to hope that the Amendment of the noble Marquess will be carried. I have had considerable experience, not, like the noble Earl who has just sat down, in social work, but in regard to the Criminal Law both on circuit and in petty sessional courts, and I have come to the conclusion that social reformers, with the best intentions in the world, do not approach this question from the right side. They sometimes forget that the girl is very often the greater offender of the two. I have known an enormous number of cases in recent years where that is entirely the fact; and before you make criminals of young boys for an offence into which they have been led by the wiles of girls, who do not, perhaps, actually realise the harm they are doing, you should give the matter very earnest consideration. I really wonder in my own mind whether some forty or fifty members of your Lordships' House, sitting here on a hot summer evening, is the proper body to make such enormous changes in the Criminal Law as we are doing. I should have thought it would have been better to move for the appointment of a Commission or a Select Committee and ask them to draft a measure for our consideration. But I suppose we have to do the best we can now under the circumstances.
THE LORD CHANCELLORMy Lords, I, too, think that the Amendment of the noble Marquess is important, and I entirely agree that some unfortunate person may get entangled in the law under the right rev. Prelate's Bill unless there is some protection given to him. But my doubt is whether the Amendment of the noble Marquess goes far enough. The proposal of the right rev. Prelate is to raise the age under which it is an offence to have carnal knowledge of a girl from sixteen, which it is at present, to eighteen, and that is a change which he proposes without limitation. The Amendment of the noble Marquess is that nobody who is not over twenty-one can be convicted of an offence under the section as amended by the right rev. Prelate. The noble Marquess put what is always a telling case, the case about which we are all agreed, the seducer who seduces a girl under eighteen. We all feel that we could not deal too hardly with him; he has ruined a girl in the worst way 47 he could ruin her. That is the case we should like to deal with. But my difficulty is that that is one case as against ninety-nine cases.
The real case which will occur in ninety-nine cases out of a hundred which will come within the Amendment will be this. A prostitute is going along Piccadilly, a precocious prostitute very likely looking over eighteen years of age, and she meets a young fellow, say, up from Oxford for the Boat Race; perhaps he has dined, and perhaps he is in a condition in which he is easily amenable to temptation. But she is the temptress; she leads him into mischief; and when we talk of ruin, just let us remember that what he will be indicted for will be a crime which carries with it the liability for two years imprisonment with hard labour. You do not ruin that young man so badly as the young girl is ruined who is seduced in the hundredth case, but you are providing ninety-nine cases of ruining young men for one case in which a girl is ruined. Therefore this is an extraordinarily difficult matter to deal with. So difficult is it that I think if this clause is passed as the right rev. Prelate proposes to pass it, you will not only give a wholly new field for the scientific practice of blackmail, which is already bad enough, but you will give rise to a class of prosecution where really the offence is on the part of the woman and not on the part of the man. It is all very well to say, "She is under eighteen"; but under eighteen a girl of that class may be just as bad and dangerous as if she were twenty-eight or thirty. In that condition of things we have to consider what we are doing. It is not easy to get the right Amendment. Speaking for myself, I am not satisfied that the noble Marquess has met the evil by making the age twenty-one. I think there are plenty of young fellows of twenty-one and twenty-two years of age and over who would be worthy objects of commiseration if, after having been approached by a prostitute who was near the age of eighteen, they found themselves indicted and convicted.
There are two classes of cases, I agree. There is the case of the cold-blooded offender. I do not know how to get at the hundredth case on which the noble Lord spoke without sacrificing the other ninety-nine; but I do know how to get at a number of other people—those, for 48 instance, who keep brothels or rooms for the purpose of permitting prostitution or clandestine relations of this kind. These are people who might well be put upon careful inquiry, and if the result of the restriction put upon them was that they could not have any people there at all who did not look so old that they were obviously clear of eighteen I think no harm would be done. The same is true with search warrants when there is reason to believe that a girl is being detained for immoral purposes. The same is true of another class of case, seduction of girls that has been favoured or encouraged by their parents. All these things are dealt with by the Criminal Law as it stands at present, but the age is only sixteen. I am quite prepared to raise the age in those cases to eighteen. I think good would come of it, and I am advised by those who are experienced in these matters that that would be the proper course to take. I have therefore put down, as an alternative to the proposition which is now before the House, a proposition which we shall come to in a moment, and which I only mention now because of its bearing upon that with which we are dealing. I have put down a proposition to omit "Section 5 (1)," but to leave the clause so that the right rev. Prelate's proposal would raise the age of consent in these other cold-blooded cases of which I have spoken. Speaking for myself, I am not satisfied with the Amendment of the noble Marquess opposite. I would much prefer not to attempt to deal with the proposition to raise the age from sixteen to eighteen under which it is an offence to have carnal knowledge of the woman, not because the hundredth case, as I have described before, is not one of the utmost gravity, but because in endeavouring to deal with that you deal with ninety-nine others which are infinitely more likely to occur and under which you may inflict very grave injustice.
THE LORD CHAIRMANIn order to safeguard, in case this Amendment is not carried, the Amendment in the name of the Lord Chancellor which comes afterwards, I suggest to your Lordships that the question now should be whether the word "in" stand part of the clause. If that word is left out, the rest will follow. If the word is not left out, it leaves it open to the Lord Chancellor to move his Amendment.
THE LORD BISHOP OF LONDONI accept the principle of what the noble Marquess has said in moving this Amendment, and if I may, on Report, I will move words more satisfactory in form.
§ LORD PARMOORWould the carrying of the noble Marquess's Amendment exclude that of the Lord Chancellor?
THE LORD CHAIRMANNot in the form in which I propose to put it. The question is that the first word after "sixteen"—namely, the word "in"—stand part of the clause.
§ On Question, resolved in the negative.
THE LORD CHAIRMANThe natural course now would be to leave out, as moved by Lord Salisbury, the remainder of the clause. The noble Marquess would then move the insertion of his proposed paragraphs (a) and (b). But I understand the Lord Chancellor desires to move to amend the Amendment.
§ On Question, That the remainder of the clause stand part, resolved in the negative.
§ THE MARQUESS OF SALISBURYI beg to move the insertion of paragraph (a)—
(a) in section five, subsection one, in any case in which the person charged is of or above the age of twenty-one years, and.
THE LORD CHANCELLORI move to amend the clause by leaving out the words "section five, subsection one" and subsequent words.
§ THE MARQUESS OF SALISBURYAll those words have gone out of the clause now.
THE LORD CHAIRMANThe Lord Chancellor desires to oppose that. The question is that Lord Salisbury's new paragraph (a) be inserted.
§ THE MARQUESS OF SALISBURYI hope the Lord Chancellor will let me put my Amendment in. I am afraid as it stands his will not read. Your Lordships have just consented to strike out from Clause 2 all words after "sixteen." All the remaining words in the right rev. Prelate's clause are gone from the Bill. If the Lord Chancellor opposes my Amendment then the right rev. Prelate's clause will end with the word "sixteen."
THE LORD CHANCELLORThe question between us is a single point. I am afraid of limiting the protection to twenty-one years of age in these cases, and the noble Marquess desires to so limit it?
§ THE MARQUESS OF SALISBURYYes. Let me say one word on another matter of detail in respect of this. We shall be only too delighted at a later stage to listen to any suggestion from the right rev. Prelate or other noble Lords, but at present, in spite of the great authority of the noble and learned Viscount, I must insist on asking your Lordships to support me.
§ THE MARQUESS OF SALISBURYThat is so.
THE LORD CHANCELLORIf he will consider another form of words and propose it on Report I am ready to take this as his principle, in which I agree with him in the main. When we come to Report I shall move to omit his clause unless he has another clause himself and will move it himself. But I must not be taken, in not dividing the House, as assenting to it as it is on the Paper.
§ On Question, the new paragraphs (a) and (b), moved by Lord Salisbury, agreed to.
THE LORD CHAIRMANI think the next Amendment in the name of the Lord Chancellor—Page 1, line 10, leave out ("section five, subsection one")—falls out?
THE LORD CHANCELLORYes, that Amendment falls. But I propose to add a new subsection to provide that it shall not be a defence under Section 5 of the Criminal Law Amendment Act, 1885, to prove that the person charged had reasonable cause to believe that the girl was of or above the age of sixteen years if, in fact, she was under the age of fourteen. Under Section 5 of the Act it is at present a defence to prove that the defendant had cause to believe that the girl was over the age of sixteen. There was reason for putting that in, because a great many girls who are under sixteen look over that age. But I think we might advance a step. The Bill proposes to repeal the schedule making that defence available. I think it would be a very dangerous thing altogether to deprive a person of that defence; he might have very reasonable cause for so believing. It is felt that great injustice might be done if this defence were taken away. On the other hand, such defence should not be open to a man who says he thought a girl, who is in fact under fourteen, was over sixteen. My present Amendment will limit the defence in that direction. That is to say, if the girl is in fact under fourteen it is no defence for a man to say that he thought she was over sixteen.
§
Amendment moved—
Page 1, line 12, after ("Act") insert as a new subsection:
(2) It shall not be a defence under section five of the said Act to prove that the person charged had reasonable cause to believe that the girl was of or above the age of sixteen years if, in fact, she was under the age of fourteen, and accordingly at the end of the first proviso to that section there shall be inserted the words "Unless she was, in fact, under the age of fourteen years."—(The Lord Chancellor.)
§ THE MARQUESS OF SALISBURYYes; and for that reason I am afraid the Lord Chancellor's Amendment will not quite do, because he has gone back to sixteen. As the Bill stands eighteen remains. The Lord Chancellor's Amendment will have to be recast, and I would suggest that he should not press the Amendment at this stage.
§ Amendment, by leave, withdrawn.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.
§ THE LORD BISHOP OF LONDON had an Amendment on the Paper to insert, after Clause 3, the following new clause:—
§ Power to send young prostitutes to rescue homes.
§ .—(1) Where a girl is convicted by a court of competent jurisdiction of an offence punishable in the case of an adult with imprisonment without the option of a line, Or of any offence mentioned in the Schedule to this Act, and
- (a) it appears to the court by which she is convicted that she is under eighteen years of age; and
- (b) it is proved to the satisfaction of the court that she is a common prostitute;
§ (2) Any such rescue home may be certified as a reformatory school, and where it has been so certified the provisions of the Children Act, 1908, shall apply in the case of such a girl as if she was a youthful offender in respect of whom an order had been made under section fifty-seven of that Act, subject however to the following modification, namely, that twenty-one years shall be substituted for nineteen years as the age to which the period of detention may, and that of supervision (if any) shall extend.
§ (3) Where a girl having been discharged on probation under the powers conferred by the Probation of Offenders Act, 1907, on her entering into a recognizance to be of good behaviour and to appear for conviction or sentence when called on during the period specified in the order of the court, commits a breach of any condition of her recognizance and in respect of such breach is brought before the court before which she is bound by her recognizance to appear for conviction or sentence, the foregoing provisions of this section shall apply as if she had been convicted by that court of such an offence as aforesaid.
THE LORD BISHOP OF LONDONI should like, before moving this new clause, to ask the Lord Chancellor whether he wants to reduce the age at the Report stage?
THE LORD BISHOP OF LONDONI would like to explain to the House that my Bill was perfectly coherent to my mind, and this new clause entirely fitted in. If we were dealing with the man and the age was raised from sixteen to eighteen I was quite prepared to deal with the woman and see that she was sent to a home of refuge, as is set forth in this new clause, but the justice of that very much depends on what happens at the subsequent stage of the Bill. If I am not able to deal with the man, I am not going to punish the woman. I shall hold this clause over, with your Lordships' consent, in order to see what your Lordships decide as regards the man before I ask you to deal with the woman. It seems to me that we have had a good deal too much legislation on one side in this matter. This clause I hold to be only just, on the understanding that we have adequately dealt with those who lead away girls between sixteen and eighteen.
THE LORD CHANCELLORIt is irregular for me to speak upon this Amendment as the right rev. Prelate has not moved it, but I wish to say that his clause seems to me to be a most admirable clause. It does not punish for any new offence; on the contrary, it only applies in cases where an offence is proved and there is a conviction and it then substitutes a rescue home for imprisonment. I hope that the right rev. Prelate will not omit to bring this clause up on Report.
§ Remaining clauses agreed to.
§ The Schedules:
THE LORD CHANCELLORI think we had better leave the Amendments on the Schedules until the Report stage.
§ This was agreed to.
§ The Report of Amendments to be received on Monday next, and Bill to be printed as amended. (No. 184.)