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Consent Versus Community: What basis for sexual ... - Jubilee Centre

Consent Versus Community: What basis for sexual ... - Jubilee Centre

Foreword This is a

Foreword This is a report that we at the Jubilee Centre have long anticipated. Over the years, we have conducted or commissioned research on a broad range of issues of concern to the biblical writers. When asked ‘Why climb Mount Everest?’ George Leigh Mallory gave the famous reply ‘Because it’s there’. The impetus for this research is similar. Sexual offences is an area of human life and conduct about which biblical law is clearly concerned; the material is there and needs to be understood. Starting from the other end, it is equally clear that sexual offences is an area of great contemporary importance. The reforms introduced in the Sexual Offences Act 2003 are based upon particular value judgements; similar values have subsequently informed the Civil Partnership Act 2004 and the Equality Act 2005. These developments confirm the need for an advanced biblical sexual ethic capable of illuminating and challenging the underlying concepts driving recent legislative reform and the wider social change to which such reform is bound as consequence and cause. By focussing upon consent versus community, this study opens a powerful line of critique, one the Jubilee Centre is continuing to research. Our contention is that the morality of a decision regarding sexual practice can only adequately be judged when the interests of third parties are taken into account. To put it another way, debate should be focused around a positive concern for the communities we seek to protect. What about the toll upon one’s spouse, children, extended family, friends or colleagues – some or all of whom will be affected by decisions ‘consenting adults’ take? A serious concern to build community requires a new, less individualistic basis for sexual offences. This ‘glimpse of a strange land’ opens a new, and surprisingly fruitful, way forward. It is, perhaps, particularly appropriate that a passage from Leviticus should prove so fruitful. In contemporary debate about family policy and sexual ethics it is often dismissed as ‘primitive’. By demonstrating the care with which the material in Leviticus 20 is arranged, and the focus of the argument, this report will also, we hope, strengthen the confidence of the Church in the wisdom and authority of this neglected and maligned part of Holy Scripture. J W Fletcher Director iii

Part I Sexual offences in the twenty-first century: Reform and context This Part considers the current landscape of sexual offences in England and Wales at the start of the twenty-first century. This landscape is dominated by the reforms introduced by the Sexual Offences Act 2003, and amending legislation such as the Sexual Offences (Amendment) Act 2000. I will first explore the reasons for reform, as well as the principles and ideology underlying the new legislation (see 1 below). I will then turn to consider the Act in more detail, identifying specific offences (see 2 below). This will provide the necessary legislative background against which to consider the particular prohibitions of biblical law in Parts II–IV. I will next consider the social context which has made radical change in our approach to sexual offences appear both necessary and desirable (see 3 below), and identify a number of points which require further reflection (see 4 below). Finally in this Part, I shall offer some brief conclusions that can reasonably be derived from this account. 1. Re-setting the boundaries The Home Secretary began the process of reforming sexual offences in England and Wales at the end of the twentieth century with the establishment of the Sex Offences Review Group in 1999. Its Terms of Reference were: ‘To review the sex offences in the common and statute law of England and Wales, and make recommendations that will: (1) provide coherent and clear sex offences which protect individuals, especially children and the more vulnerable, from abuse and exploitation; (2) enable abusers to be appropriately punished; and (3) be fair and non-discriminatory in accordance with the European Convention on Human Rights and the Human Rights Act’ (Sex Offences Review 2000a, iii). Reform was perceived to be necessary because the last major piece of legislation in this area was the Sexual Offences Act 1956, nearly half a century ago, which was itself a consolidating measure that merged older legislation. There were thus at least three main reasons why reform was necessary. These three reasons are conveniently summarised by David Blunkett, as Home Secretary, in criticising the law as ‘archaic, incoherent and discriminatory’. First, the existing law was seen as archaic. There have been significant changes to the law on sexual offences since 1956 including the Sex Offences Act 1967 which decriminalised homosexual intercourse in private (s. 1(1)). The Sexual Offences Act 1956 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. Second, it was claimed that the existing law lacked coherence and structure. ‘There is no Highway Code for sexual relations to give a clear indication of what society expects or will tolerate’ (Sex Offences Review Group 2000a, iv). Third, and related to the second reason, the current law contained a number of perceived anomalies, especially in regard to homosexual behaviour, where it was seen as discriminatory. Consensual sexual behaviour was treated differently by the criminal law on the basis of sexual orientation, most notably regarding differences in the age of consent between heterosexual and homosexual intercourse, prior to the introduction of the Sexual Offences (Amendment) Act 2000. In addition, penalties for homosexual offences were higher than for equivalent heterosexual offences (Sex Offences Review Group 2000a, 98). This was held to be unacceptable given the perception that modern society is increasingly reluctant to discriminate on the grounds of sexual orientation. The incorporation of the ECHR into English law was thought to give new urgency to resolving these anomalies. The Sex Offences Review Group took full advantage of their terms of reference to recommend ‘root and branch’ reform (Sex Offences Review Group 2000a, 1). Issues covered in the Review include: identifying the principles that ought to underlie the law on sex offences; rape and sexual assault; sexual offences against children and vulnerable people; sexual abuse within the family; issues of gender and discrimination; trafficking and sexual exploitation and various deviant acts. The need to avoid discrimination in regard to sexual orientation and to address the perceived needs of homosexual persons emerged as key issues following 1

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