States Meeting Transcript - 21st March 2018

STATES OF JERSEY

OFFICIAL REPORT

WEDNESDAY, 21st MARCH 2018

PUBLIC BUSINESS - resumption .................................................................. 4

1. Draft Sexual Offences (Jersey) Law 201- (P.18/2018) .................................... 4

1. Deputy K.P. Moore of St. Peter (The Minister for Home Affairs): ........................ 4

1. Deputy T.A. Vallois of St. John: .......................................................... 6
2. Connétable D.W. Mezbourian of St. Lawrence : ........................................... 8
3. Deputy M.R. Higgins of St. Helier : ........................................................ 9
4. Deputy M. Tadier of St. Brelade :.......................................................... 9
5. Senator S.C. Ferguson: ................................................................... 10
6. Deputy R. Labey of St. Helier : ........................................................... 11
7. Connétable S.W. Pallett of St. Brelade : .................................................. 11
8. Deputy S.M. Wickenden of St. Helier : ................................................... 12
9. Deputy K.C. Lewis of St. Saviour : ....................................................... 12
10. Deputy J.M. Maçon of St. Saviour: .................................................... 12
11. The Very Reverend M.R. Keirle , B.A., Dean of Jersey: .............................. 13
12. Deputy S.M. Brée of St. Clement : .................................................... 13
13. The Deputy of St. Peter : ............................................................... 13
14. Mr. R.J. MacRae , H.M. Attorney General: ............................................ 14

2. The Deputy of St. Peter :.................................................................. 16
3. The Deputy of St. Peter :.................................................................. 18
4. The Deputy of St. Peter :.................................................................. 18

1. The Deputy of St. John : .................................................................. 19
2. Deputy J.A. Hilton of St. Helier : ......................................................... 19
3. The Deputy of St. Peter :.................................................................. 19
4. The Attorney General: .................................................................... 19
   5. The Deputy of St. Peter :.................................................................. 20

1. Deputy S.M. Brée: ........................................................................ 21
2. The Deputy of St. John :................................................................... 21

4. Deputy J.A. Hilton: ....................................................................... 21
5. Deputy M. Tadier : ........................................................................ 22
6. The Attorney General: .................................................................... 22
7. The Deputy of St. Peter :.................................................................. 23

6. The Deputy of St. Peter :.................................................................. 24

1. Deputy J.A. Martin of St Helier: .......................................................... 27
2. Deputy S.M. Wickenden: ................................................................. 27
3. Deputy K.C. Lewis : ...................................................................... 27
4. The Attorney General: .................................................................... 27

5. Deputy D. Johnson of St. Mary : .......................................................... 28
6. Deputy J.A. Hilton: ....................................................................... 28
7. Deputy M.R. Higgins: .................................................................... 29
8. Deputy S.M. Brée: ........................................................................ 29
9. Senator P.M. Bailhache : .................................................................. 30
10. The Deputy of St. Peter : ............................................................... 30

7. The Deputy of St. Peter :.................................................................. 32

2. Draft Sexual Offences (Jersey) Law 201- (P.18/2018): second amendment (P.18/2018.Amd.(2)) ........................................................................ 32

2.1 The Deputy of St. John (Education and Home Affairs Scrutiny Panel - rapporteur): .... 33

1. Senator P.M. Bailhache : .................................................................. 34
2. Deputy M.R. Higgins: .................................................................... 35
3. Deputy S.M. Wickenden: ................................................................. 37
4. Deputy R.J. Renouf of St. Ouen : ......................................................... 38

LUNCHEON ADJOURNMENT PROPOSED ................................................... 41 LUNCHEON ADJOURNMENT .................................................................. 41

5. Deputy R. Labey : ......................................................................... 41
6. Mr. M.H. Temple Q.C., H.M. Solicitor General: ........................................ 41
7. Deputy J.A.N. Le Fondré: ................................................................ 46
8. Deputy J.A. Martin: ...................................................................... 47
9. Deputy J.M. Maçon: ...................................................................... 48
10. Deputy M. Tadier : ..................................................................... 49
11. The Deputy of St. Peter : ............................................................... 51
12. Connétable M.P.S. Le Troquer of St. Martin : ......................................... 53
13. Senator P.F.C. Ozouf : ................................................................. 54
14. Deputy S.Y. Mézec of St. Helier :...................................................... 56
15. Deputy S.G. Luce of St. Martin : ...................................................... 58
16. Deputy S.M. Brée: ..................................................................... 59
17. Senator I.J. Gorst : ...................................................................... 60
18. Deputy A.E. Pryke of Trinity : ......................................................... 61
19. Deputy M.J. Norton of St. Brelade : ................................................... 61
20. The Solicitor General: ................................................................. 62
21. The Deputy of St. John :................................................................ 63

3. Draft Sexual Offences (Jersey) Law 201- (P.18/2018) - resumption .................... 65

1. The Deputy of St. Peter :.................................................................. 65
2. The Deputy of St. Peter :.................................................................. 66
3. The Deputy of St. Peter :.................................................................. 68

1. Senator P.F.C. Ozouf : .................................................................... 68
2. The Deputy of St. John : .................................................................. 69
3. The Deputy of St. Martin : ................................................................ 69
4. The Connétable of St. Saviour : ........................................................... 69
5. The Deputy of St. Peter :.................................................................. 69

4. Committee of Inquiry: actions taken by the R.N.L.I. and the Jersey Government which led to the removal of the All Weather Lifeboat - proposition to defer debate until 23rd March (P.36/2018) ............................................................. 70

1. Senator S.C. Ferguson: ................................................................... 70

2. The Deputy of St. Martin : ................................................................ 71
3. Deputy J.A.N. Le Fondré: ................................................................ 71
4. Deputy G.P. Southern of St. Helier : ...................................................... 71
5. Connétable L. Norman of St. Clement : .................................................. 71
6. Deputy E.J. Noel of St. Lawrence : ....................................................... 71
7. Senator P.F.C. Ozouf : .................................................................... 71
8. Senator I.J. Gorst : ........................................................................ 72
9. Deputy M.R. Higgins: .................................................................... 72
10. Deputy M. Tadier : ........................................................................ 72
11. The Connétable of St. Martin : ............................................................ 72
12. Senator S.C. Ferguson: ................................................................... 73

5. Committee of Inquiry: actions taken by the R.N.L.I. and the Jersey Government which led to the removal of the All Weather Lifeboat (as amended by P.36/2018 (Amd (2)) .......................................................................................... 74

5.1 Senator S.C. Ferguson: ................................................................... 74

1. Senator P.F. Routier: ...................................................................... 78
2. Deputy S.M. Wickenden: ................................................................. 80
3. The Solicitor General: .................................................................... 80
4. The Connétable of St. Mary : .............................................................. 81
5. The Connétable of St. Martin : ............................................................ 81
6. Deputy G.J. Truscott of St. Brelade : ...................................................... 83
7. Deputy J.A.N. Le Fondré: ................................................................ 84
8. Senator P.M. Bailhache : .................................................................. 89
9. Senator P.F.C. Ozouf : .................................................................... 91
10. Deputy A.D. Lewis : ................................................................... 94
11. Deputy A.E. Pryke of Trinity : ......................................................... 96

ADJOURNMENT .................................................................................. 97

12. Deputy E.J. Noel: ...................................................................... 97
13. The Connétable of St. Brelade : ........................................................ 99
14. Connétable C.H. Taylor of St. John : ................................................. 100
15. Deputy R. Labey : .................................................................... 101
16. Deputy S.M. Brée: .................................................................... 102
17. Deputy M.R. Higgins: ................................................................ 103
18. The Deputy of St. Mary : ............................................................. 103
19. The Connétable of St. Saviour : ...................................................... 103
20. The Deputy of St. Martin : ............................................................ 104
21. Senator S.C. Ferguson: ............................................................... 105

ADJOURNMENT ................................................................................. 110

[9:31]

The Roll was called and the Dean led the Assembly in Prayer. PUBLIC BUSINESS - resumption

1. Draft Sexual Offences (Jersey) Law 201- (P.18/2018)

The Greffier of the States (in the Chair):

The first item of business this morning is the draft Sexual Offences (Jersey) Law 201- brought by the Minister for Home Affairs, P.18/2018. I ask the Greffier to read the citation.

The Assistant Greffier or the States:

Draft Sexual Offences (Jersey) Law 201-. A Law to make new provision about sexual offences, to amend the law relating to certain sexual acts, to amend the Sex Offenders (Jersey) Law 2010, and for connected purposes. The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law.

1. Deputy K.P. Moore of St. Peter (The Minister for Home Affairs):

I am very pleased to be able to bring this Sexual Offences (Jersey) Law to the Assembly. This is part of a package of legislation designed to modernise Jersey's criminal law and criminal procedures. The States have already approved the Criminal Procedure (Bail) Law last year and the Criminal Procedure Law yesterday. I am grateful to Members for the consideration they have given to these important matters. The law in relation to sexual offences in Jersey has, in some respects, not kept pace with developments in society and modern criminal justice practices. While most types of sexual offending can be addressed using offences in existing statutes or customary law, this draft law consolidates and codifies a number of offences in order to provide a clear, modern suite of offences to protect Islanders from harm. One of our priorities has been to raise awareness of the issues, to ensure that citizens are protected from domestic and sexual abuse. In order to deliver protection for all the law is framed on the basis that offenders and victims can be of any sex, and offences are gender neutral, unless there is a good reason for them to be otherwise, such as the specific issue of female genital mutilation. The overall objective of the draft law is to adequate meet the needs and expectations of the police, prosecutors, modern Jersey society and international standards. One of the objectives of this draft law is to ensure that as an Island we are compliant with a number of international conventions. These include the optional protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; the United Nations Convention on the Elimination of All Forms of Discrimination against Women and the Council of Europe Convention on Preventing and Combatting Violence against Women and Girls, known at the Istanbul Convention. The new law has been comprehensively researched and reviewed to reflect current best practice. It will ensure that the safeguards that exist elsewhere will be available here in Jersey. Sexual offences are part of our criminal law that deals with the most private and intimate part of life, sexual relationships, when they are non-consensual, inappropriate or wrong. As such, they reflect society's view of what is right and wrong in sexual relations. Jersey's current sexual offences legislation is dealt with by a number of customary law offences, including the offences of rape, indecent assault, sodomy, gross indecency, outraging public decency and incest. It also comprises a number of offences created by statue, including most recently the offences in relation to indecent images of children, included in the Protection of Children (Jersey) Law 1994 and the offences in respect of grooming found in Sexual Offences (Jersey) Law 2007. Although piecemeal change has been made to Jersey's sexual offences law over time it has not been the subject of overarching review to ensure that as a whole it meets the needs of victims of crime and provides the police and prosecutors with the tools they need to fulfil the expectations of modern Jersey society in relation to such offences. Elsewhere in the British Isles comprehensive reviews of sexual offences legislation has led to the enactment of substantial reform, reflected in the new Sexual Offences Act in England and Wales, and Scotland also. A similar approach to codification has been taken in Northern Ireland. The experience of other jurisdictions has provided a useful starting point in the development of our local legislation, however in developing the draft law care has been taken to identify both strengths and weaknesses in approaches taken in the U.K.(United Kingdom) and to build on the former. In particular, it is noted that the Scots' Sexual Offences Act 2009 made a number of improvements both in terms of clarity and brevity on the English legislation from 2003. Having reviewed the changes that have been made in the U.K., it was recognised that in some instances improvements were required to our law to address some types of behaviour that do not amount to an offence in Jersey at present. For example, offences related to exposing a child to sexually explicit material, it was also noted that certain offences that are in use in Jersey are archaic in that they are limited to behaviour towards one gender or rely on terminology and old statutes or case law that is no longer appropriate to use and certain offences have inappropriate maximum sentences. I will briefly outline the themes covered by each of the 10 parts of the draft law. The draft law covers most sexual behaviour that ought to be criminalised in Jersey. Some matters were left outside the scope of the draft law, for instance, measures relating to prevention of sexual offending, including safeguarding notification, restraining and protection from and travel requirements for sex offenders, all of which are covered in other legislation. Part 1, Articles 1 to 4, contains provisions concerning the interpretation and application of the draft law. Of particular importance, this defines consent in statute for the first time. The definition of consent to ensure that it provides appropriate and clear protection of victims, including where they may have consumed alcohol. Part 2 provides for a series of offences where one of the parties to a sexual act has not freely agreed to being part of the sexual act and the other party does not reasonably believe consent has been provided. Each of these offences can be committed by or against an adult or a child of any age. Part 3 deals with offences by adults over the age of 18 against young children who are aged 12 or younger. The child's consent is irrelevant to guilt as would be any belief by the adult that the child was older. Part 4 deals with offences by adults against older children aged 13, 14 or 15. The child's consent is again irrelevant to guilt but in each Article there is a defence of reasonable belief that the child was aged 16 or older. Part 5 deals with sexual offences against children aged 15 or younger. Some, but not all, can be committed by children, some only by adults, and some by either. The approach adopted deals with the difficulty of children under the age of sexual consent having consensual sex with each other, as well as children at very similar ages but border each side of the age of consent. That is covered in Article 13. Part 6 criminalises sexual behaviour where there is a defined relationship between an adult and a child which creates a position of trust on the part of the adult towards a particular child. The list of defined relationships has been brought forward from the Sexual Offences (Jersey) Law 2007 with some amendments, including the addition of a coach, in light of the deficiency in the law as brought to the attention of the public on the exposure by global media of a number of high level coaches abusing their positions of trust.

[9:45]

Part 7 details those offences that relate to prostitution, replacing some old legislation and adding new provisions. Prostitution itself is not illegal, it is the conduct of both prostitute and the person to whom the prostitution service is provided which can constitute an offence under the draft law. An offence can also be committed by a person who controls prostitution or a person who lets property knowing that it will be used for the purposes of committing prostitution offences under the draft law. Part 8 prohibits F.G.M. (Female Genital Mutilation), it creates offences of carrying out or facilitating F.G.M. and requires certain professionals to report apparent F.G.M. Part 9 provides for miscellaneous sexual offences to include incest, exposure, voyeurism, bestiality, administering a substance to commit a sexual offence, committing an offence in order to commit a sexual offence. Article 41 also provides that certain persons who commit certain sexual offences outside Jersey will

be guilty of those offences as if they were committed in Jersey. Part 10 contains repeals and amendments to other legislation and also makes provision preserving ability to elect for jury trial where a person is charged with an offence under parts 2, 3 or 4 of the draft law and restricting the admission of evidence as to a complainant's past sexual history in a sex offence case. The draft law amends the Protection of Children (Jersey) Law 1994, the Marriage and Civil Status (Jersey) Law 2001 and the Sex Offenders (Jersey) Law 2010. The draft law also abolishes a number of customary law offences, including rape, indecent assault, sodomy, gross indecency and incest. The draft law has been developed in collaboration with the Law Officers' Department, the States of Jersey Police have been consulted on the proposals, as have the judiciary. A public consultation was undertaken between 1st September last year and 13th October. Other interested parties, including charities and those working within the field of sexual health took the opportunity to comment on proposed changes and identify concerns. The responses received were constructive. All were considered and taken on board where appropriate. I also met with some of these bodies with the Assistant Minister. I am grateful to the Education and Home Affairs Scrutiny Panel once again for their involvement, both before and after the draft law was lodged with the Assembly. Their active interest in this vital piece of legislation has provided helpful amendment. The draft law must tread a delicate balance between the protection of those who might be exploited physically or emotionally and the vital interest in protecting each individual's liberty to engage in consensual sexual relations. The draft law deals with these delicate issues in a clear and concise way that builds on the experience of other jurisdictions that have developed new sexual offences legislation. It provides protection to individuals of all genders and most particularly aims to protect children in Jersey from abuse and exploitation. The draft law makes new provision on sexual offences replacing most, but not all, of the existing statutory and customary law offences and creating new offences as well as amending provisions on sexual offences in other legislation. I would be more than happy to take any questions from Members at this stage and move the principles of the draft law.

The Greffier of the States (in the Chair):

Is the draft law seconded? [Seconded]  Does any Member wish to speak on the principles?

1. Deputy T.A. Vallois of St. John :

I thought it appropriate to speak on the principles of the law. I am the lead Member for the Education and Home Affairs Scrutiny Panel who scrutinised the Sexual Offences (Jersey) Law so I am going to respond to this legislation with 2 hats on: one as that Member and as a Back-Bencher. Firstly, as the lead Member for the Scrutiny Panel who have been working diligently with the Minister and relevant officials to scrutinize this legislation within an appropriate timescale, we would like to put on record our thanks to all involved, especially the Law Officers and draftsmen for their time and commitment in assisting us in carrying out our work in a timely manner. I would also like to take this opportunity to recognise the hard work and dedication of our own officer who has had a variety of areas to cover during this review and he has been nothing but exceptional in his work ethic and determination in ensuring the support we have had on this Scrutiny Panel has been second to none. Members will note that the panel have made 3 amendments to the draft legislation, one of which I stated last night we would withdraw and I will just explain briefly why we are withdrawing that amendment. We lodged this with the intention of trying to clarify and making it explicitly clear within the legislation that it should not matter that you are married or in a particular relationship when it comes to sexual offences. Further to the comments that the Minister has provided advising that they sought further advice we wanted to clarify that advice, we have had that clarity and we are therefore at this point in time happy to withdraw that amendment in recognising that the legislation covers free agreement. But I think it is a conversation for another piece of legislation which I understand will define domestic abuse hopefully coming in the future. That is the reason for withdrawing the third amendment. I will speak on the other 2 amendments when addressing the appropriate Articles so I will not go into

those in particular now. Suffice to say, this has been based on evidence obtained during the course of our review and further examination of the meaning behind some of the Articles. As a panel, we welcome the new legislation and believe it to be a huge step forward for the protection of both complainants and defendants during the process of criminal proceedings for sexual offences. It creates clarity and most importantly a definition of consent around the role of what constitutes a sexual offence. I would also like to draw Members' attention to our comments. I know they are 28 pages long but I am sure Members are used to reading substantial documents by now. We have briefly gone through the legislation and tried to explain where our evidence answers to questions have been obtained from. You will see that we specifically refer to areas such as the voyeurism, abuse of trust, the sexual history evidence, which I would just like to obviously state that there is an ability in future for the States to bring forward regulations under the sexual history evidence so there will be further discussion around that. Image-based sexual abuse we have also referred to, which was one of the submissions that was made by Professor McGlynn. We have been given the understanding that this would be covered under the Telecommunications (Jersey) Law. I think it is important that bearing in mind the information that was provided from the submission on image- based sexual abuse I think there is, going forward, probably some room for improvement and possibly putting this into the Sexual Offences (Jersey) Law. The submission provided by Professor McGlynn stated: "Including this type of offending within the Sexual Offences (Jersey) Law is important because how laws are framed has serious ramifications in terms of understanding the nature of the offending. It is serious harm. Informing educative and preventative responses, focus on issues of sexual consent, and sexual double-standards. It also means that other protections from sexual offending, such as prevention programmes and reporting or notification requirements cover this form of abuse." I am also aware that, of course, somebody who is a member of the public who has reported an incident of image-based sexual violence is not particularly happy around the mechanisms in terms of the sentencing or the charging around those particular issues. I think this is something that we need to grapple with within society and have a bigger conversation around this and then potentially considering whether it is worthy of clarifying that in the Sexual Offences (Jersey) Law in the future. Another area which is covered is prostitution, which refers to the Nordic model. Female and male genital mutilation: now a submission came to us pretty late on in our review. There is a view that there is potential for expanding genital mutilation to males also. It is not in this legislation but, of course, this raises issues and it has raised issues around the world with particular cultures and religions. We have not amended it at this point because, like I say, it was submitted to us very late in the day and we thought, again same as the image-based, it deserves further discussion with society and determination of whether male genital mutilation should be considered as an offence, as is female genital mutilation. That is a wider discussion with the public before embedding it in the legislation. On the basis I will finish that from the Education and Home Affairs Scrutiny Panel, but I would like the opportunity just to say a couple of comments, myself. I took the opportunity to get in touch with a young lady - I have already mentioned her – a member of the public who has taken it upon herself, what she feels is a public duty, and she is being called a vigilante. I do not particularly like that word, I do not think it is appropriate. But she feels she is doing her duty in protecting children in the Island. I have been in touch with her and I want to take the opportunity just to say something on her behalf because I think it is appropriate to do so. It is very difficult to try and suggest or demonise these people who feel like they have to play a part in protecting their community and their society. Very basically and very generally, she stated that she believes the sentences should be higher even for the attempting to meet a child. "These men believe they are meeting children and nothing else. It should count the same as if it were a real child. As you know, if it were not for them getting lucky and it being me it would have been an innocent child. I am not sure what else to say on it other than Jersey needs to get up to date on the times. It says something when parents come to me over the police or have been shoved-off by them so decide to come to a member of the public for help." That is absolutely her words and I thought it was appropriate for me to state this because she has taken it upon herself it is a safety issue, I think we have to recognise it in this particular concern. But, of course, within the legislation we cover sexual grooming. I believe it is under Article 16 of the law. Sorry, it moved because it was originally 15, I think. No, Article 15. So sexual grooming of a child. This embeds liability, the actual sentence in terms of imprisonment for a term of 10 years into a fine. Of course it qualifies the reasons behind that. I think we have a duty to recognise the concerns that are out there about what is clearly deemed as predators who are seeking out our children for these types of acts. I have to put on record I totally deplore it and I think we have a duty to step up to the game and ensure that we are doing the right thing for the children of our Island. I will just move briefly on to a couple of other things. It was interesting when the legislation first came out, I was having a conversation with my family around where you draw the line in terms of protecting children, because in this legislation what it does is it completely criminalises for children 12 years and under and then it creates a defence for 13 to 15 year-olds. This was where it made me slightly uncomfortable because my son is 11, my stepson is 14 and I sit there and put myself, as I try to do, in somebody else's shoes and I have to question whether it is right to have a defence for 13 to 15 year-olds. I completely understand the arguments, I know that there may be some 15 year-olds that go out there, they look older than what they are, they may play on that particular issue, but I find it very uneasy that you say absolutely criminalise for a 12 year-old or under but imagine they turn 13 the next day, there is a defence mechanism.

[10:00]

Or they look older or there is this defence mechanism put in there. I just feel completely uncomfortable with it. I am fully supportive of the legislation and this is purely from my own point of view, from my children, my stepchildren and, of course, my nieces and nephews. I look at it from that point of view where I cannot believe that we I do not think the argument is strong enough for having that defence mechanism in for 13 to 15 year-olds. That is my own view. So finally on my last point, I am just trying to cover everything in the in principle debate, my last concern is of course I think doing a great deal of research around sexual offences, around complainants and defendants and the way that justice is pursued in these particular cases, there was one particular question I remember asking in the Scrutiny hearing with the Minister in terms of what is the victim's view of justice? I think that is another conversation; that is a bigger conversation because unless you have been a victim yourself you know how intimidating a court process may be and this is a conversation that is being had around the world about how we deal with sexual offences and whether the court process is the appropriate way forward. I just want to say that because I think it needs to be at the top of people's minds when we are talking about sexual abuse, sexual offences because, at the end of the day, these people have to go through horrid events in the first place to get to the point of going to court and then having to relive the tales of what has happened. I could not imagine being in their place and what that must feel like. I just want to raise those particular points and I thank the Minister and all other Members involved on behalf of Scrutiny, and myself. I look forward to hearing other Members' comments on the Sexual Offences (Jersey) Law.

2. Connétable D.W. Mezbourian of St. Lawrence :

Having seconded the principles I am pleased to rise to wholeheartedly support this law which has been a long time coming. I am sure everybody agrees that we need a sexual offences law that is modern and sends out a very positive message to victims of any gender. I think I will wait until [Interruption] ..

Connétable S.A. Le Sueur -Rennard of St. Saviour :

Could I make a suggestion? We have in our mix a gentleman who looks after all the parish timepieces, why do we not send Deputy Kevin Lewis up and see if he can help?

Senator P.F.C. Ozouf :

There is saying that in Las Vegas they do not want you to know what time of day it is and maybe there is a subliminal message that somebody is saying.

The Greffier of the States (in the Chair):

You may be close to the mark there, Senator. I am not sure Deputy Lewis is volunteering to clamber up there at the moment. The clock is broken. I think that looks about right, thank you.

The Connétable of St. Lawrence :

The point I was making earlier was that we need a sexual offences law that is modern and sends out a very positive message to victims of any gender. We need a law that will comply with international conventions so that we can stand proud with other jurisdictions, but we also need a law that recognises Jersey as the jurisdiction that puts victims at the heart of our justice system and is not afraid to tackle different issues. I briefly refer to the principles in part 1: "This law defines consent and free agreement" and clearly sets out where free agreement is absent and addresses the difference between consent and submission. In parts 2 and 3, the law also sets out that agreement by a child is not free agreement.   The law is  a key part in  protecting our children and  young people from sexual exploitation and I am sure all here today will agree that there is no defence for sexual acts with a child. I am also pleased that we address within this law the abuse of positions of trust. That can be found in part 6 and, of course, many of our children of all ages attend clubs, be they sporting clubs or youth clubs and they are coached either in groups or singly. As the Minister has said it is important to ensure that children aged 16 and over, as well as our younger ones, are still protected. Both the parents and, more importantly, the children themselves have a right to expect to be safe and that the person in authority over our children is both trustworthy and knowledgeable. The Deputy of St. John mentioned the act of female genital mutilation. That is something that to me is incomprehensible and I fail to see any justification for it. I therefore support wholeheartedly the message that we are sending out in part 8, that this Island will not tolerate this practice. I do not want to say to much more on the principles other than, as we know, this law has been a long time in coming but when it is enacted we will know that it will provide protection to individuals of all genders, but most particularly it will provide protection to children in Jersey from abuse and exploitation. That is what we are here for, which is to protect our children from abuse and exploitation. I am pleased to commend the principles of the draft law to the Assembly.

3. Deputy M.R. Higgins of St. Helier :

I will say first of all that I welcome the law and the vast majority of the provisions in it. As we come on to the Articles I will be paying particular attention to removing the right to a jury trial, which does concern me because I think it is a major issue. But so far as the law itself is concerned, I welcome it, it is long overdue and there are some very good provisions in it, but I will have to be convinced of the amendment that the Scrutiny Panel come forward with and that the Minister has accepted it, I believe.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? Deputy Tadier .

4. Deputy M. Tadier of St. Brelade :

I would like to focus on the F.G.M. part of this as well. Like the Constable of St. Lawrence who spoke in her capacity as Assistant Minister, I think it is completely an alien concept and also a heinous concept that this can go on at all. What I understand from having listened to discussions on the radio in the U.K. and also dramatizations of young women who have been through that process, the first point to say is that as far as I understand F.G.M. in the U.K., while being illegal, there has not been any convictions for F.G.M. even though it is a very big country. Perhaps that can be confirmed. But certainly on the research I have just done says that there has not. If that is old information there are

very real difficulties around that issue. I think it is absolutely right that we do an up to date law in this regard. I would hope that in Jersey we do not ever get any convictions because it does not occur at all in the Island. But if there are instances of it we need to make sure that it is does get dealt with. What I am not sure about is how we deal with the wider principle of why it happens at all in the first place. It is quite apparent that this gets passed down, obviously in certain religious circles. Why are there people teaching that it is okay to do that? The other tragedy is that it gets passed down from mother to mother. You will hear from the personal experiences of people who have been through it that they are taken to the doctor at the command, if you like, of their particular religious order and that it is normalised and they suffer obviously physically, and sometimes it is very physical, but it is also psychological and emotional. Those are the issues that we need to look at. On that basis, having looked at Article 31 and the Articles that deal with it, the list of professionals who are asked to report if they come across it, I am surprised that there has not been included on that list a responsibility for religious clerics in that regard. It says professionals and it lists them as teachers, doctors, nurses, et cetera, have a responsibility if they become aware of or hear of it happening, have evidence of it, that they need to report it to the authorities, but it seems to me that it is inherently incumbent on people in the religious community, whatever those denominations and religions are, because they are probably the ones that might come across it. It is reasonable to assume - and let us not beat around the bush here - that F.G.M. is linked to a certain brand of religion. It is not necessarily linked to the overall religion but the sub-denominations of that religion and to the people who are most likely to know about it are the people who adhere to that particular brand of religion and their leaders in any given community. I think it is important both that within the law and within the wider strategy - and perhaps the Minister can talk to this when she sums up - I know there is an ability to add people to the list but why they have not been put on the list in the first place as far as I can see. Also what the wider strategy is for engaging with the community in which female genital mutilation is most likely to happen to make sure that the risk is diminished and eradicated, because it cannot just be from a legislative point of view. This, if you like, is to deal with the consequences of something when it has happened but is there going to be a proactive strategy to make sure that this practice, if it does occur in Jersey, is eradicated and if it does not occur yet that it never does come to our Island.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? Senator Ferguson.

5. Senator S.C. Ferguson:

I would just follow up the comments made by Deputy Tadier . Some years ago I was on the board of a charity which operated in Africa, particularly in Kenya, and one of the things that bothered them was the incidence of F.G.M. In their investigation they discovered it was the only source income for the old lady who was performing the operation. Therefore, they had to think of some way of giving her an income, giving her a responsibility and therefore diverting her attention from F.G.M. They were extremely imaginative. What they did was convert the old ladies, changed their profession to being health visitors. They gave them a bicycle, a white coat and a schedule of places to go and look at the health of villages and give them some pills, these sort of things and they found the incidence of F.G.M. fell considerably. This is possibly something that overseas aid might like to look at, or the Commonwealth Women's Association.

[10:15]

Basically, it is not entirely a religious thing, there is, as I say, this business where it is the only source of income an old lady has and therefore how do you change the emphasis of her income source to prevent such an unpleasant operation that effectively gives women a disability for life. I do not know whether anyone has read Ayaan Hirsi's books. She is a Somali who is now in America and she is quite straightforward about the effects of F.G.M. I just suggest that the problem is wider than just a religious one.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? Deputy Labey .

6. Deputy R. Labey of St. Helier :

Leading on from what the Deputy of St. John was saying, I am interested to know if with the vigilante paedophile trapper, does an arrangement exist between the States of Jersey Police and this lady and what is that arrangement? One is bound to ask if what this vigilante is doing is acceptable to the courts and in law, I think the community would say she is providing a service, it begs the question why are the States of Jersey Police not doing it themselves? This may be a question for the Attorney General but is there is something in law which prevents the police from engaging in the kind of entrapment that the vigilante is doing but that once that is done by the vigilante they can take it on and it goes through the courts. My concern is if thought has been given to the safety of this woman, because what if something goes wrong. She poses as a male paedophile online in social media meeting sites, dating sites, and she grooms the victim as a paedophile would. I have read some of the transcripts and they make I am sorry, the other way around. She is being the groomed underaged child - of course, absolutely right - and the transcripts make horrific reading when they are published in the Jersey Evening Post, they really do. What if somebody cottons on? What if when she goes to meet and take pictures of the person who is coming to the meeting, rendezvous the hearsay that I picked up over this whole issue is that she has to do this because the police will not. I would just like to know if that is true and why, legally?

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? The Constable of St. Brelade .

7. Connétable S.W. Pallett of St. Brelade :

I am only going to speak once in this debate and I will probably do it now. I know it is specific to Article 18 and abuse of trust but it is only right that I do say something. Article 18 does deal with abuse of trust and specifically with children aged 16 to 17. I think we will all be fairly aware of some pretty high profile cases both in the U.K. and U.S.A. (United States of America) regarding sports coaches. The case in the U.S.A. with the gymnastic coach was quite horrific. Watching testimony of young women involved and what happened to them and the suicide attempts, guilt, psychological damage caused, anybody watching that I think would be nothing short of heartbroken. The judge, when sentencing, said that he had just signed this particular person's death warrant and in many ways should have done. The football coach in the U.K. again dating back to the 80s and 90s, I think that case was also harrowing, so clearly we do need laws that protect young people and we do need laws that protect children between the ages of 16 and 17. What I would say, though, is that all those involved in sport need to understand what this new law is setting out to achieve and the parameters they must operate within. As I say, these profile cases I mentioned were clearly black and white, clearly unlawful but it should be noted that coaches within many sports are getting younger or maybe I am just getting older. I know that I have been privileged to see coaches in their teenage years in Jersey providing excellent support to athletes of all ages. These coaches will need to be supported and guided through the potential risks if they are not to fall foul of Article 18 in particular. A change in the law that I agree is absolutely needed. An 18 year-old football coach, for example, could be coaching a 16 to 17 year-old girls' football team. There is absolutely nothing wrong with that and it is fantastic that we have got young people prepared to give their time up supporting people in sport. Clearly there is going to be virtually no age difference between the coach and the players and it would not be difficult to understand if there were attractions between boys and girls of a similar age, but under this law any act that was sexual between an 18 year-old coach and 17 year-old player would

be an offence. Absolutely right, I have absolutely no issue with that but it would be vital that those in coaching positions fully understand what a position of trust requires and means. There cannot be grey areas and those within the authority, within each sport, have a responsibility to ensure that all their coaches are properly guided and supported. Clearly any relationship of a sexual nature between a coach and an athlete aged between 16 and 17 needs to be avoided for the best interests of sport and to ensure children are properly safeguarded, but it is right that I highlight that age differences between coaches and athletes may be very small and not as seen in these recent high profile cases. Coaches of all ages, whether they are 18 to 80 need to be made fully aware of what is acceptable when coaching children of any age in regards to hands-on coaching if we are to retain many of the army of volunteers involved in sport in Jersey. What we should try to avoid are laws designed to protect children and creating a climate of fear for coaches here in Jersey. Coaches here, nationally and internationally, are conscious of the risk of touching a young person in any way and are becoming more worried and fearful that there actions could lead to repercussions. We certainly need, I think, to avoid at all costs in an Island that is so proud of its volunteer community, putting off those that want to give something back to the community and specifically, in this case, sport. I do worry within sport that showing what body position is correct, be it in cricket, football, swimming, or helping a child in danger could be construed as a sexual act that could be covered under Article 18. I believe it would be a backward step in sport if all hands-on coaching was deemed to be too risky and became a thing of the past. I know from my own point of view some of the support I was given and some of the guidance I was given was hands-on and totally appropriate. It would be wrong if we were to lose that. There have been cases in the U.K. where coaches have been prosecuted for innocent acts of support but we in sport need to accept that the recent dreadful cases must not happen again. I fully support the law but merely ask that authorities are sensible when considering complaints and there will be a need to support and guide especially our younger coaches who are doing a fantastic job in keeping this Island fit and active.

8. Deputy S.M. Wickenden of St. Helier :

I applaud this law coming before us. It is about time. This is all about defining consent which I think is absolutely needed. We quite honestly have been failing in this area for far too long. We have been failing young people, and young women especially, in this Island by not having these things properly defined. I will go more into that in one of the amendments later on. What I was going to ask the Minister is where it defines coaching, is that just on a sports basis or would that also cover things like music and curriculum tutoring where young children can be in isolation with a person of trust as well. That is, I guess, the question I want to be answered in summing up, please.

9. Deputy K.C. Lewis of St. Saviour :

I just wish to speak briefly on the delicate subject of F.G.M. I do not know if any instances in Jersey where this has occurred but I know it is a religious/cultural thing. It has happened quite a few times in the United Kingdom and this procedure, for want of a better word, is done without anaesthetic with unsterilized equipment and when it does come to light it is usually because the child is taken to hospital with acute blood poisoning, which in itself can be life threatening. It is a horrible thing. I know we do not have anything in Jersey like at that the moment but it definitely needs to be on the books to ensure that it does not.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? Deputy Maçon.

10. Deputy J.M. Maçon of St. Saviour :

Our lead Member has already spoken to much of this so I do not want to repeat what she said except to endorse her comments about our scrutiny officer who has worked incredibly hard for us over the past couple of months with all the projects that we have been dealing with and also to thank the Minister and her team for the support that they have given to the Scrutiny Panel and helping us with our work. While a big significant section on this law does cover the matter of consent, I hope the Minister, when summing up, will also explain how simply the law itself is not enough and there is still a lot of work that needs to be done in the promotion and understanding of consent, especially how going forward within education I would hope that we would hear, particularly with our young boys, how important it is to teach them what is and is not appropriate and that type of behaviour. I would not want to give Members the understanding that while this law, of course, is a significant improvement that this in and of itself is not going to tackle the issues it is looking to do and there is still a significant role for education going forward. I hope the Minister does agree with that. Thank you.

11. The Very Reverend M.R. Keirle , B.A., Dean of Jersey:

I just want to make a very simple point really. While I thoroughly agree that much of F.G.M. happens within religious communities I think we must be very alert that it is not just there where it happens, this is a religious/traditional/cultural issue and we must be very careful where we look. I am also deeply concerned about several comments I have heard: "We do not have this in Jersey." The fact of the matter is that my experience of living in Africa is that F.G.M. happens behind closed doors, secret and hidden in communities. The fact of the matter is we have absolutely no idea whether this is happening in Jersey or not. Part of this legislation is that it is important that we are raising awareness of it.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? Deputy Brée.

12. Deputy S.M. Brée of St. Clement :

It is really following on from the very important and interesting point that the Connétable of St. Brelade raised. While no one wants to see any kind of abuse of trust of any child by any person who is in a position of trust, it does raise a slight question in my mind of the definitions used within Article 18 and then the definition used in Article 19 of who is in a position of trust. I just use a scenario, you have obviously a lot of, say, 18 year-olds, 19 year-olds who want to go into coaching a sport particularly. We will use the example the Connétable used. You have a 19 year-old young man coaching football to a team of girls aged between, say, 15 and 17 - I am using the analogy if I may. We live in a very small Island. That coach aged 19 then happens to meet the 17 year-old who is above the age of sexual consent while they are out on an evening out. They then form a relationship. Perfectly properly there is nothing wrong with that. However, the parents of the 17 year-old girl do not like her chosen boyfriend.

[10:30]

Is it possible then that those parents could use this particular Article to attempt to bring a conviction against the 19 year-old because he happens to be the coach of the football team that their daughter belongs to? That will cause a problem because we do live in a small Island. Being a father myself and knowing my 19 year-old son, when he was 19, he was out a lot, meeting a lot of people and formed relationships. I am just a bit concerned because we are saying, as an interpretation in this law, that a child is aged 16 or 17, i.e. above effectively the age of sexual consent, whether or not we are creating a possible problem here with this particular scenario. I would hope that the Minister could allay any fears that I may have on that.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the principles? If not, I call on the Minister.

13. The Deputy of St. Peter :

I thank all of those Members who have taken the opportunity to speak so far in the debate. I am most grateful. Some Members have strayed somewhat into discussion of specific Articles and I do not know whether the Assembly would prefer to take those issues now or later as appropriate. I would also be willing, if the Assembly were so minded, to take some of the Articles separately if Members would prefer, but we will come on to that in good time. Sexual images were raised firstly by the lead of the Scrutiny Panel. I think this is an area where there is currently a great deal of change. We do, as the Deputy rightly pointed out, have some facilitation in the Telecommunications law and this is a point that is being closely followed, I think, and perhaps a matter for a future Assembly if there was a desire to look at this again and respond to any of the experiences that members of the public have had to date in dealing with this aspect. The Deputy went on to discuss the issue of grooming and some of the actions that have been taken by a member of the public. I think that was perhaps more a matter for the Attorney General. The Deputy raised the point of entrapment or perhaps that was raised by another Member at a later point and there is a specific issue there with the police obviously not being able to undertake entrapment. I wonder whether the Attorney General would like to give more advice to the Assembly on that point?

14. Mr. R.J. MacRae , H.M. Attorney General:

I am grateful. The position of entrapment is a difficult one and the courts have traditionally drawn a distinction between members of the police and the members of the public and the courts have discouraged the police from encouraging people to commit an offence that they would not otherwise have committed. To give an example which is divorced from the facts that were mentioned earlier on there will be no difficulty in prosecuting someone who offered a plain clothes police officer a drug in a nightclub, but in circumstances where a police officer undercover badgered a member of the public to supply them with a pill in a nightclub, which they would not have otherwise have done, then the courts might have difficulty with that approach. I hope that gives a distinction between entrapment in the sense of encouraging someone to commit an offence they would not have otherwise committed and simply a more innocent involvement by law enforcement in such cases. I do not think I want to go into the facts of this particular case for obvious reasons but I hope that answers the question the Deputy asked.

The Deputy of St. Peter :

Thank you to the Attorney General. I was also going to thank the Dean for his intervention and comments in relation to F.G.M. I think that was very helpful. I would like to confirm that I am aware of some cases in relation to F.G.M. that are underway and have been undertaken in the United Kingdom. Also to confirm to Deputy Tadier that carrying out the surgical operation of female genital mutilation is an offence under this law, I would just like to make that absolutely clear. Members also raised the issue of coaches and the abuse of trust provisions. I would at this point like to make clear that someone who is engaging with a young person for the purpose of education training would also be covered under the abuse of trust provisions. It is a more sensitive point and I do take the comments very seriously that were raised, particularly by the Constable of St. Brelade in relation to current and recent high profile cases. Of course one would never wish anybody to be put off giving of their time and helping and assisting with sporting endeavours of young people and we are very grateful to those members of our community who commit an incredible amount of time, effort, energy and enthusiasm into this very valuable part of our community. However, there is always a fine line to be adopted between ensuring that somebody is able to go about their life with the very best of intentions and safeguarding for those times when somebody does take an opportunity to abuse that position of trust. I hope that Members, when we come to debating that point of the law, will be able to support the measures here that allow for somebody who does abuse that position of trust. Deputy Maçon also raised education regarding consent. Consent is a very important part of this law and makes it, for the very first time, clear that the sexual relations between adults consent is absolutely vital. It outlines some of the factors that may, in the past, have been considered to remove consent from that decision. There has been today a great deal of education, particularly from Prison Me! No Way! and Members might recall some of the liveried police vans that have been around the Island with the Ask. Listen. Respect.' campaign that was promoted, particularly with the help of the Jersey Rugby Club, for which we were very grateful. That education programme will and must continue because it is a vital part of education, particularly in social and moral education. The draft law treads a delicate balance between public protection and individual liberty. I think our discussions have already raised some of those issues and we must, as an Assembly, respect the wishes and feelings of the survivors of sexual violence. That is one of the main principles that I hope Members will keep at the forefront as we continue with our deliberations. At this point I would move the principles.

Deputy R. Labey :

The Minister got in very quickly there after the Attorney General and I wonder if we could have the opportunity to question the Attorney General on the answer he gave.

The Greffier of the States (in the Chair): Yes.

Deputy R. Labey :

Thank you. That was understood by the Attorney but if the courts do not look kindly upon police officers entering into entrapment to secure a conviction, how is it okay for a member of the public to do so? If this is a regular occurrence and the police might be said to have an arrangement with this person, this person is almost vicariously an agent of theirs, who is liable if she gets hurt, attacked, in the course of her duties?

The Attorney General:

I am sorry, I really do not think I can talk about a specific case, and even if I could I would not know enough about the specific details of this case in order to do so. It would not be right to talk about a specific case. In terms of a member of the public whose actions resulted in someone committing an offence they would not have otherwise have committed then again it is a matter for the court's discretion about the evidence that was produced as a consequence of the actions of that individual. But I do not think I can go further than that in relation to a specific case.

The Greffier of the States (in the Chair):

Did I hear the appel called for, Minister?

The Deputy of St. Peter :

You did not but I would call for the appel, please. The Greffier of the States (in the Chair):

Excellent, the appel has been called for. I ask Members to return to their seats. The vote is on the draft Sexual Offences (Jersey) Law, the principles of the law, and I ask the Greffier to open the voting.

The Greffier of the States (in the Chair):

Now, it is possible for the Scrutiny Panel at this point to call it in. Deputy Maçon? Deputy J.M. Maçon:

No, thank you.

The Greffier of the States (in the Chair):

So we now move to the Articles. There were 3 amendments lodged. Deputy Vallois has told us that one has been withdrawn and I think the first amendment, I understand that has been accepted and will be read with the first Article, am I right in thinking that? So it will not be separately debated?

The Deputy of St. Peter :

If the Assembly is content for me to take that as read we can do so.

The Greffier of the States (in the Chair):

So we start with Article 1 and I invite the Minister to decide how to proceed. Article 1, Minister.

2. The Deputy of St. Peter :

Thank you, yes, I was going to start with Articles 1 to 4. Part 1 deals with preliminary matters and effectively sets the scene making the required provisions through the remaining parts of the Articles to have proper effect. I am going to explain some of the provisions in more detail than in later Articles but the terminology is to set the context for the remaining of the draft law. So we start with Article 1, which is an interpretation provision, as Members would expect, it defines the words and expressions used in the law. Important terms are defined such as an adult is defined as a person aged 18 or older, a child is defined as a person aged 17 or younger, an act is considered sexual if a reasonable person would, to all of the circumstances in the case, consider it to be sexual. Touching includes acts treated as touching but also the acts of ejaculating semen, emitting urine or saliva on to another person and the definition of touching is deliberately not exhaustive but, as the Assembly has noted, we accept the amendment of the Scrutiny Panel in relation to this Article. Article 2 raises the issue of consent and makes special provision for the interpretation of consent. In this draft law this is defined as free agreement. The law does not prescribe how a person may express free agreement, however the draft law sets out a list of cases which agreement cannot be treated as free. This includes cases where there is violence or the threat of violence is used to coerce a person to engage in a sexual act; or a person is unlawfully detained; a person is deceived as to the nature or purpose of the act; a person impersonates someone else; consent is also absent if the person is asleep, unconscious, rendered incapable of consenting by alcohol or by any other substance. This applies both at the time when consent is given and at the time of the act for which the consent is given. So it a person gives consent while awake, conscious and capable for an act to take place, once that person has become asleep, unconscious or incapable that will not count as consent to the act for these purposes. If consent is given it can be taken back at any time before the act, if that act then takes place it does so without consent. Consent can be withdrawn at any time during the act, if that happens and the act then takes place, it does so without consent. The rule on alcohol applies whether or not the person has voluntarily consumed alcohol or any other stupefying substance. The absence of consent is often a key element in sexual offences such as rape and sexual assault. This definition makes it much clearer what the jury or the Jurats will need to determine in these situations, based on the evidence as to whether there was free agreement to the sexual acts in question. Our definition of consent has been informed by experience elsewhere, particularly the English and Scott ish laws and by recommendation by Dame Elish Angiolini in a recent 2015 report.

[10:45]

We move then to Article 3, which is defences and reasonable belief of consent, age or absence of exploitation. A number of the offences in the draft law make it an ingredient of an offence the defendant should lack a reasonable belief in the complainant's consent to a sexual act. In some other cases, including for the offences in part 4 of the draft law concerning older children, it is a defence to an offence if the defendant reasonably believes that a child is aged 16 or over. The purpose of this provision is to make clear where the evidential burden of proof of defence rests. Questions around consent will be determined according to all of the circumstances, including whether any steps were taken by the defendant to ascertain whether the other person consents and what those steps were. Similarly, questions around whether there was reasonable knowledge of the victims age will be determined according to whether the defendant has taken any steps to ascertain their age and what those steps were. Questions around whether a person is being exploited in relation to performance of a prostitution service will be treated in the same way. This provision makes it clear that where a defendant wishes to rely on a defence he or she need only raise sufficient evidence that there is a factual basis for the defence. The burden of proving that the defence does not apply beyond a reasonable doubt then rests with the prosecution, along with proving the ingredients of the offence, which include the act and intention. Then Article 4 deals with accessories and children. This Article ensures that a child aged 15 or younger cannot be criminalised for being forced to carry out act encouraged by an adult. It also ensures that a person, such as a doctor, prescribing contraception is not guilty of an offence of aiding, abetting or counselling the commission of a sexual offence by someone else against a child when the person is acting to protect the child's sexual health or physical

safety, prevent a pregnancy or give advice about emotional well-being. It would, of course, be an offence if such a person were acting for the purpose of sexual gratification or to cause humiliation, distress or alarm. I move Articles 1 to 4.

The Greffier of the States (in the Chair):

Are those Articles seconded? [Seconded] Does any Member wish to speak on Articles 1 or 4? Those Members in favour of Articles 1 to 4, kindly show? Those against? They are adopted. Minister.

3. The Deputy of St. Peter :

I will now move on to Articles 5 to 17, if I may, although the question was raised in relation to Articles 11 and 12 about the defence relating to age. If Members would like me to take those separately we can perhaps then deal with Articles 5 to 10 next. So this is part 2 of the draft law. In each of these the offence is only committed if the other person does not consent to the act concerned and the defendant does not reasonably believe that the other person does consent. I have already explained in detail the meaning of consent and reasonable belief so I do not propose to repeat those definitions. Behaviour that falls within the scope of the offences in part 2 would currently be covered by a range of customary law offences where the maximum penalty is at large. As statutory offences, there is now a maximum penalty for each offence. Article 5 replaces the customary law of rape with a statutory offence that covers a broader range of behaviour. It carries a maximum sentence of imprisonment for life and unlimited fines or both. Article 6 creates an offence of sexual penetration without consent, similar to rape but limited to anal or vaginal penetration and that may be committed where the penetration is with a part of the body or an object. It carries a maximum sentence of imprisonment for life, an unlimited fine or both. Article 7 creates an offence of sexual touching without consent. This carries a maximum sentence of imprisonment for 10 years, a fine or both. Article 8 creates an offence of causing someone to engage in a sexual act without consent. This carries a maximum sentence of imprisonment for life or for 10 years depending on the circumstances. We move now to part 3, Articles 9 and 10. This part makes special provision for children aged 12 and under. Consent is irrelevant to the offence and reasonable belief in the age of the child is also not relevant. Article 9 creates offences of penile penetration and other sexual penetration punishable by imprisonment for life. A lesser offence of sexual touching carries a maximum sentence of 14 years. Article 10 creates the offences of causing or inciting a sexual act with a young child. Again, there is a maximum penalty of 14 years. The maximum term of imprisonment is life if the offence involves penetrative acts. I move Articles 5 to 10.

The Greffier of the States (in the Chair):

Are those Articles seconded? [Seconded] Does any Member wish to speak on Articles 5 to 10? Those Members in favour of Articles 5 to 10, kindly show? Those against? Those Articles are adopted. Minister.

4. The Deputy of St. Peter :

Now we will deal with Articles 11 and 12 separately. This is part 4 and this part deals with offences committed by adult against older children. Again, the child's consent is irrelevant to guilt but in each Article there is a defence of reasonable belief that the child is over the age of consent, for example, aged 16 or over. Article 11 creates the offence of unlawful sexual intercourse with sexual penetration of or sexual touching of an older child. Article 12 creates the offences of causing or inciting a sexual activity with an older child. In this part there is a maximum sentence of 10 years and I move the Articles.

The Greffier of the States (in the Chair):

Are these Articles seconded? [Seconded] Does any Member wish to speak on Articles 11 and 12? The Deputy of St. John .

1. The Deputy of St. John :

Just briefly, just because I mentioned in this in the principles, I do not think it is as simple as being able to vote against the particular Articles because I think it is still an offence against 13 to 15 year- olds. By merely taking the defence out of it, which would be, for example, Article 11, paragraph 4, I did mention the fact that of course you have that ability, say, for about 15 year-olds who may look 16 and older. What I was questioning was the 13, 14 year-old side of things. That is what I am uncomfortable with. I will not be voting against these Articles but I think there should be serious consideration in the future for, I believe, possibly moving that up to 14 and then for the 15 to have the defence. Thank you.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the Articles? Deputy Hilton.

2. Deputy J.A. Hilton of St. Helier :

I may have misunderstood so I would like the Minister to explain why an adult who commits an offence against a person aged 13, 14 or 15 and an adult is somebody aged over 18, so it could be an adult of 60 having sexual intercourse with a 13 year-old which may be consensual or may not be, why the imprisonment term is only 10 years when we have just agreed that under Article 5, if a person is found guilty of an offence is liable to imprisonment for life? Could the Minister please explain the difference in the sentencing?

The Greffier of the States (in the Chair):

Does any other Member wish to speak? Minister.

3. The Deputy of St. Peter :

I thank the Deputies for their questions and the points made. In answer to the Deputy of St. John , it is a sensitive and difficult area and that is why there is a defence and it would be, I think, for the court to give consideration at the time to the various issues around this because, of course, as Deputy Hilton rightly alluded, some of these offences may be conducted by an older person with a proximity of age and also there are issues where it is difficult to determine somebody's age at first glance and, of course, a person may not always say they are the age that they actually are and that is why there is that issue of defence. Deputy Hilton raises a very interesting point in relation to the sentencing. It is something I have to admit I have pondered on myself. There is, I believe, a good reason for that and that is in relation to the proximity of age. The Attorney General may be able to give further clarity on that.

4. The Attorney General:

To assist Deputy Hilton, if the offence is rape of a person, including a child, the maximum is life imprisonment and if it is what used to be called unlawful sexual intercourse of a child under 13, under Article 9 it is life imprisonment. As she currently says, if it is unlawful sexual intercourse by which we mean because in law the child cannot consent but it is not against the child's will, in the sense of rape, then the maximum is 10 years. The current maximum under the existing law is 5 years, so it has been doubled to 10 years, which was thought to be appropriate. But, of course, that is a matter which will be kept under review if in a particular case we find that not to be the appropriate maximum sentence.

Deputy J.A. Hilton:

I just wanted to make a comment on that, because when grooming happens and you have a much older adult grooming a child of 13, it seems to me - and there may be numerous offences of grooming of a young child - that an imprisonment term of 10 years is wholly inadequate and I think this is something that maybe should be looked at again. It certainly concerns me, I do not know if it concerns other Members. I really do think that 10 years is not an adequate sentence, especially when there is multiple offences against a child.

The Attorney General:

Of course, if there is a series of offences the court is entitled to impose consecutive sentences. So the maximum could exceed 10 years in those circumstances. But for an individual offence the sentence could not exceed 10 years' imprisonment.

The Deputy of St. Peter :

I hope that clarifies the position and I move Articles 11 and 12. The Greffier of the States (in the Chair):

Those Members in favour of Articles 11 and 12, kindly show? Those against? The Articles are adopted.

5. The Deputy of St. Peter :

Shall we now move Articles 13 to 17. Article 13 creates an offence of an unlawful sexual act between children. The approach adopted deals with the difficult issue of children under the age of sexual consent having consensual sex with each other, as well as children at very similar ages. The difficult arises because this offence must necessarily cover consensual relations between teenagers where it may not be in the public interest to prosecute, but also these instances where children closer to the age of 18 have sexual relations with children who are aged 13 or 14. Perhaps in exploitative circumstances, which should be addressed through the criminal justice system, it is clear that the latter requires sufficient statutory regulation to prevent sexual exploitation of children but needs to be framed and penalised in such a way as so not to deter children from seeking guidance about sexual health and relationships. The reasonable belief in age defence applies. The offence carries a maximum sentence of imprisonment for 5 years. Article 14 makes it an offence for an adult to cause a child, aged 15 or younger, to watch a sexual act or be present during a sexual act. Article 15 creates 2 separate offences with respect to the grooming of a child aged 15 or younger. There is a defence in respect of both offences if the child was 13, 14 or 15 where the adult reasonably believed that the child was aged 16 or older. The offence in Article 15(1) is cancelled where an adult communicates with a child and then intentionally meets or travels to meet the child with the intention of engaging in unlawful sexual conduct with the child. The maximum penalty for this offence is 10 years imprisonment. The offence of Article 15(5) does not require travel to take place to meet with the child, it is committed if an adult communicates for sexual gratification with a child aged 15 or younger. This communication can occur anywhere in the world. The communication itself has to be sexual or encouraging the child to make sexual communication. The maximum penalty for this offence is 5 years' imprisonment. Article 16 creates an offence for a person of any age to pay for the performance of a sexual service by a child under the age of 18. There is a defence if the child was aged 15, 16 or 17 where the adult reasonably believed that the child was 18 or over. The maximum there is 14 years' imprisonment. In Article 17, it creates and offence for a person to cause, incite, control, arrange or facilitate child prostitution anywhere in the world. I move Articles 13 to 17.

[11:00]

The Greffier of the States (in the Chair): Are Articles 13 to 17 seconded? [Seconded] Deputy R.J. Rondel of St. Helier :

Could I ask for the appel on this one?

Your request is noted when we get to it. Does any Member wish to speak on Articles 13 to 17? Deputy Brée.

1. Deputy S.M. Brée:

I just seek a point of clarity on Article 13, and perhaps it is my misreading of it. Article 13(1)(c) talks about if the other person is aged 15 or younger and yet Article 13(3) says: "It is a defence for the defendant to show that the other person was aged 13 or older." I am just slightly confused. There seems to be a disparity between ages there, or am I misreading it?

2. The Deputy of St. John :

Could I possibly ask the Attorney General just to clarify Article 15 for me, please? The sexual grooming of a child. I just want it absolutely clear in my mind with regards to this particular Article, as to whether it creates an offence for people such as the lady I was mentioning earlier who was called a vigilante for media purposes but I would just like absolute clarity from the Attorney General and that this Article does not create an offence for the role in which she plays in the community. In the Scrutiny Panel's comments we did ask a particular question, which is also Article 15, it refers to paragraph 3(f), which is on page 38. It refers to an offence under Article 11(14), breach of child protection laws or interim child protection laws or proscribed order of the Sex Offenders (Jersey) Law 2010. The question that was asked, of course, was surely if someone on a sex offenders' register has broken their order the offence should be considered more severely than that of a first time, should they have a defence? The answer we received was in other jurisdictions a defence is available and we have taken a similar approach. In sentencing the judge will take into account all the relevant circumstances. I would just like to identify from the Attorney General, just to understand, relevant circumstances in that particular context.

3. The Attorney General:

In relation to Article 15, the first half of Article 15 covers the circumstance where an adult intentionally meets the child or the other person and the part that is new is Article 10(5) which criminalises conduct where there is no meeting, there is grooming, as it were, over the internet. So in relation to the role of the vigilante or agent provocateur, I really cannot comment on an individual case. It would be quite wrong for me to do so and attorneys never do. All I can say is that for there to be a prosecution of such a person there would need to be good evidence that they aided and abetted the offence and, in addition to that, there would need to be a view that it was in the public interest to prosecute that person. It may be that it simply would not be in the public interest to do so. So I really cannot say more than that in relation to individuals involving themselves in that sort of action. In relation to sexual grooming of a child, the question asked by Scrutiny, which we see on their helpful comments for the purpose of the law: "If someone on the sex offenders' register has broken their order, should the offence be considered more severely than that of a first time?" Absolutely it should be. There are 2 recent cases before the Royal Court of defendants breaching orders made under the law and they were treated significantly more harshly than a first offender would have been.

4. Deputy J.A. Hilton:

I am really pleased to see included under Article 15 an adult commits an offence and is liable to imprisonment for a term of 10 years if that person travels with the intention of meeting the other person in any other part of the world. I am really pleased to see that included because Members will be well aware that there are, indeed, lots of adults who travel to places like Thailand and the Philippines to engage in sexual activity with very, very young children. I am really pleased to see that. One of the questions I have around that is has Jersey ever investigated any cases where that has happened and what was the outcome of that investigation. Also I wanted to ask a question about

Article 16, paying for sexual services by a child. A person commits an offence and is liable to imprisonment for 14 years but it does not stipulate that that act can take place anywhere in the world. I am looking for clarification that does include that offence taking place anywhere in the world. Thank you.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on these Articles? Deputy Tadier .

5. Deputy M. Tadier :

It is just to seek clarification either from the Minister or the Attorney General about how different scenarios under 13 might act out, especially give the fact that the public interest has been mentioned. This is specifically unlawful sexual act between children. Can the Attorney General perhaps, in the first instance, talk about whether presumed consent between 2 children is a concept, given the fact that we know that there is not any legal consent for an adult who sleeps with somebody under 16? That is what one might call statutory rape, I do not know if we would call it that. But if there is a scenario, looking particularly at 13(3)(a) where it says a defence could be if the other person was aged 13 or older and the defendant reasonably believed that the other person was aged 16 or older, it seems to me that you could have, for example, a 12 year-old and a 14 year-old who engage in some kind of relationship, and let us say it was a 12 year-old boy and a 14 year-old girl who were engaged in a relationship, it could lead to a strange scenario whereby the 12 year-old, and let us presume there was some form of consent here, there was not any coercion, might say: "Well, I can prove that the person that I was engaging with was older" and it could lead to some bizarre scenarios. So what is envisaged as the problem and what people are trying to protect in those scenarios, given the fact that I am sure at school people do engage in relationships. Are people going to be criminalised or is the definition of unlawful sexual act something different?

6. The Attorney General:

I think I should deal with that question now because Deputy Tadier raises an important point about a difficult provision of the law which took a lot of time to draft to ensure that it was not unfair, and this is how it works. If you have Article 13 in front of you, which I am sure everybody has, it involves children - so a child, that is someone 17 years of age or younger, so let us think of a 16 year-old boy for these purposes - commits an offence and you would see how he would commit it. If the other person is aged 15 or younger, we do not have statutory rape but, as we know, children cannot consent to sex as a matter of law. Under 13(3), which I think answers the question that Deputy Brée asked earlier on, it is a defence for the defendant, that is the 16 year-old boy in my example, to show that the other person was aged 13 or older. That is to preserve the point which goes through the whole of the law that there is never any defence in relation to age in relation to a child under 13. So it is a defence for the defendant, the 16 year-old boy, to show that the other person, let us say a girl, was aged 13 or older and the defendant reasonably believed that the person was aged 16 years of age or older. So the 15 year-old boy in my example would be entitled to be acquitted if he could show there were reasonable grounds for him believing the girl to be 16 or older. That only applies, that defence, if she is in fact 13, 14 or 15. Going on to the second point that Deputy Tadier raised. Under the existing law, where of course we have indecent assault, which is preserved by this law, and of course unlawful sexual intercourse with a child under 16, prosecutions of children are few and far between, and they will remain few and far between because it is not often in the public interest to prosecute children in relation to consensual sexual activity, absent evidence of oppression or other behaviour which warrants the involvement of the criminal justice system, and that is an approach which I am sure will continue. I hope that provides him with some comfort as to how this provision will work in relation to acts between children.

Deputy M. Tadier :

I guess the scenario which is more commonplace is the one where, let us say, there are 2 15 year-olds who engage in a relationship and engage in the acts listed in 13(1)(a)(i) to (iv). Technically under the law they are committing an offence which both of them can be imprisoned for 5 years. I am just wondering if that Article could have been drafted in a different way because it does not distinguish between voluntary and involuntary. It just talks about whether somebody intentionally touches another person or engages in an act with another person but of course we know that there is a world of difference between 2 15 year-olds where there are these acts which are not wanted and not consensual for those purposes and where they are simply the natural consequence of a normal relationship, albeit between 2 people who are under 16. Albeit I know that in reality those circumstantial factors will and are taken into consideration both by in deciding whether there is a prosecution or a public interest test. But I think certainly the way the law is drafted it does not allow for any distinction between those 2 scenarios, both of which are fundamentally different.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on these Articles? I call on the Minister.

7. The Deputy of St. Peter :

I particularly thank the Attorney General for his helpful responses. So he leaves me with very little to address. But I will firstly, perhaps, discuss the age of sexual activity that I think is what Deputy Tadier is raising, because the examples he has given are examples of people who are beneath the age of consent engaging in a relationship. There was consideration between myself and the Assistant Minister as to whether there should be a question taken out to consultation in relation to the age of consent, whether that should be lowered, but it was decided, after some careful consideration and consultation with different bodies, that it was not appropriate to do so. However, as the Attorney General has described, such a consensual situation would be dealt with in a sensitive fashion.

[11:15]

Deputy M. Tadier :

Would the Minister give way? Just for clarity, there is no suggestion that anyone should reduce the age of consent. That is not what I said obviously. But it is simply in regard to these considerations where young people are engaging in some kind of physical activity; just about how the consequences and the public interest test would be applied in those cases.

The Deputy of St. Peter :

I think it is an issue of the age of consent because if the act is between people who are below that age it is, in definition of the law, an illegal act because it falls under the age of consent. That is what our society deems to be the appropriate age and that is where it is defined. As I have said, and I think the Attorney General has also, these matters are dealt with in a sensitive fashion and it is appropriate. I will move on, if I may, to deal with Deputy Hilton's point about travel. I would not be aware of whether any cases of such travel, following the purpose of grooming, has been investigated locally but I am sure we can perhaps ask that question. But in relation to Article 16 and the question whether the clause being .. if somebody travelled somewhere else in the world and there performed an act against a minor that, I believe, would be a matter for the courts of the jurisdiction, where the act actually took part. It is the grooming in Article 15 that would be relevant, no matter where in the world that act took place. I hope that clarifies the points raised by Members. I thank them for their intervention and I move Articles 13 to 17.

The (in the Chair):

The appel was called for on Articles 13 to 17. I ask Members to return to their seats and I ask the Greffier to open the voting.

6. The Deputy of St. Peter :

I thank Members. I would now like to take Articles 18 to 40 please. Part 6 outlines the circumstances in which an adult is considered to be in a position of trust in relation to a person aged 16 or 17, so that a sexual relationship between the adult and child will be criminalised. The list of defined relationships is, with some amendments, brought forward from the 2007 Law. A significant change is the addition of coach to this list of relationships. This has already been mentioned by Members.

This is intended to remedy the deficiency of the law highlighted by the exposure by the media of a number of high level coaches abusing their positions of trust. Offences in this part do not apply where the child is aged 15 or younger. This is because sexual acts carried out by an adult against a child aged 15 or younger will already be offences pursuant to parts 2, 3 or 4 of the draft law. Any abuse of trust would be considered to be an aggravating factor by the court, which would be taken into account when sentencing for offences under those parts. To be in the position of trust a number of conditions need to be satisfied. Article 8 creates an offence of abuse of a position of trust when an adult in relation to a child aged 16 or 17 and 4 defences: that the defendant reasonably believed that the victim was an adult; that the defendant did not know or suspect and could not reasonably be expected to know or suspect that there was a position of trust; that the defendant and the child were spouses or civil partners, that a lawful sexual relationship already existed before the position of trust came into being. Article 19 defines position of trust and the conditions that must be satisfied to prove that an adult is in such a position and also the premises where the activity takes place. These include that the adult looks after children in children's homes, nurseries, hospitals and schools. This includes a person who looks after a child on an individual basis and is engaged, paid or in a voluntary capacity in coaching, motivating or training a child for a sport, hobby, career or competitive event. Article 20 defines various terms. It also allows the States to amend the conditions under which an adult is in a position of trust by regulations. The maximum penalty is a custodial sentence of 5 years. In part 7, this relates to prostitution offences and this part provides for offences related to prostitution replacing some old legislation and adding new provisions. Prostitution itself is not illegal. Conduct connected to prostitution and exploitation of sex workers may constitute an offence under the draft law. In relation to causing and citing or controlling prostitution for gain the draft law introduces a new statutory offence to replace the offence in the 1895 Law. The new offence has a maximum penalty in line with that in place in England and Wales. This part also considers premises used for prostitution. The current 1895 Law provides that it is an offence to keep or run a brothel. The maximum penalty is a £250 fine and a 12-month prison sentence. Laws in England and Wales, as well as Scotland, still provide for laws in relation to brothels. This issue with legislation concerning itself with the concept of brothels is that the concept is largely outdated. The draft law modernises the terminology and provides more appropriate penalties in line with practices elsewhere, particularly in England and Wales. Article 21 defines the prostitution service as a sexual act that is performed by one person for another in return for a payment. It is irrelevant whether the payment is made or promised, whether it be by another person on their behalf or whether it is the person performing the act or to someone else. Article 22 makes it an offence for a person to pay for a prostitution service performed by a person who has been exploited. However, there is a defence if the purchaser reasonably believed that there was no third person who had again engaged in any exploitative conduct likely to induce or encourage the person to perform or offer to perform the service. Exploitative conduct is defined in this Article as any form of coercion, use of force, threats or the practice of any form of deception. This offence carries a fine of level 3, which is currently £10,000, on the standard scale. Article 23 creates an offence of offering or seeking a prostitution service in a road or public place. It only applies if the contact or loitering takes place in a road or public place, including within a vehicle. This offence carries a fine of level 3 on the standard scale. Article 24 creates an offence of advertising prostitution services on or in the vicinity of a public structure. The offence carries a fine of level 3 on the standard scale. Article 25 provides an offence causing, in citing or controlling prostitution services for gain other than for the person performing the service. This offence now carries a maximum sentence of 7 years. Article 26 concerns controlling or facilitating entry to premises that are used to provide a prostitution service. This approach has been taken as an alternative to an offence of brothel-keeping as we think it provides a more modern and appropriate basis for restricting the way in which prostitution services are provided. It creates an offence of controlling or facilitating entry to premises where it is known that a person is entering to receive or perform a prostitution service. This means that a brothel operator, who is not a prostitute, commits

an offence. It does not apply where the person controlling entry is the only person who performs the service in the premises. So prostitutes working alone are not criminalised. It also does not apply if the person is one of only 2 persons who perform a prostitution service on the premises. This means that prostitutes are not forced to work alone, which is considered to be important for their safety. This Article carries a maximum sentence of 7 years and an unlimited fine. Article 27 creates an offence of letting premises for the use of a prostitution service or failing to prevent that use where the letter knows or has reasonable grounds to suspect that a person intends to use those premises to perform a prostitution service. This applies to any person entitled to let the premises, including the owner or a letting agent. The penalty for an offence under this Article is 6 months' imprisonment and a fine of level 3 on the standard scale. In part 8, we move on to female genital mutilation Articles. This part prohibits female genital mutilation, known as F.G.M. As Members are clearly aware it creates offences, requires certain professionals to report cases where F.G.M. is apparent and allows the court to make orders to protect persons from F.G.M. This may include preventing travel to countries where the practice is prevalent. To the best of our knowledge, no cases of F.G.M. have been reported in Jersey, nonetheless, it is important that our laws are able to deal with the practice should it arise and to comply with the treaties that I have previously mentioned. Article 28 creates the offence of carrying out F.G.M. on another person. A surgical operation conducted by a relevant practitioner is not considered to be F.G.M. in prescribed circumstances. The offence carries a maximum sentence of 14 years, an unlimited fine or both. Article 29 prohibits assisting F.G.M. The offence carries a maximum sentence of 14 years. Article 30 provides an offence for failing to protect a child from F.G.M. It applies to everyone who has a formal parental responsibility of a child. There is a defence that the person could not reasonably have been expected to be aware that the child was at risk of F.G.M. The offence carries a maximum sentence again of 7 years. Article 31 imposes a duty to notify the police of apparent F.G.M. Certain professionals are included in the list of regulated professionals. Those are doctors, midwives, nurses, teachers, social workers and registered body piercers and tattooists. The notification will not be treated as a breach of confidentiality or of any other restriction on disclosing information. Failure to notify the police of apparent F.G.M. carries a maximum penalty of a level 3 fine, which I will remind Members is £10,000. Article 32 provides for the Royal Court to make an F.G.M. protection order. This can contain any terms that the court considers appropriate and may apply to contact outside Jersey. Article 33 creates the offence of breaching an F.G.M. order and carries the penalty of imprisonment for 2 years and an unlimited fine or both. In part 9, we deal with miscellaneous sexual offences. This part relates to a number of miscellaneous sexual offences, including penetrative sex with an adult relative, which is formally known as incest; exposure, voyeurism, penetration of or by an animal, which is formally known as bestiality; administering a substance to stupefy or overpower a person for sexual purposes. It also makes provision for sexual offences committed outside Jersey. Article 34 provides that it is an offence for penetrative sex to take place between blood relatives aged 16 or older. There is a defence that the defendant did not know of the relationship. The offence carries a maximum sentence of 5 years' imprisonment. Article 35 provides the offence of exposure. It applies if a person exposes genitalia intending them to be seen and intending to cause distress, humiliation or alarm, or to obtain sexual gratification without a reasonable belief that all of the persons who may see it have consented to seeing it. A note here is breasts are not considered genitalia and therefore not captured by the offence. The offence carries a maximum sentence of 2 years' imprisonment. Article 36 provides for offences of voyeurism. This is observing another person without reasonable belief in their consent in a place that would be expected to provide privacy. These include where a recording device is used and also deals with the modern practice of up-skirting and down-blousing. Offences in this Article carry a maximum sentence of 2 years' imprisonment, an unlimited fine or both. Article 37 provides for the intentional penile penetration of or by a living animal. The offence carries a maximum sentence of 5 years' imprisonment, an unlimited fine or both. Article 38 provides the offence of administering a substance for the purposes of stupefying or overpowering a person for sexual purposes. This might form part of a date rape offence. The offence carries a maximum sentence of 10 years' imprisonment or an unlimited fine or both. Article 39 provides an offence of committing any other person for the purpose of committing a sexual offence under parts 2, 3 or 4 of the draft law. For example, breaking and entering into premises with the intent to commit a rape. The offence carries a maximum sentence of 10 years' imprisonment. Article 40 makes it an offence to commit an act outside of Jersey that would be a sexual offence if committed in Jersey and can accordingly be tried by the Jersey courts. I move Articles 17 to 40.

The Greffier of the States (in the Chair):

18 to 40, I think. They are seconded? [Seconded] [11:30]

1. Deputy J.A. Martin of St Helier:

I thank the Minister for a really clear interpretation of most of the laws and this, hopefully, the Minister can answer. But if not, I hope the Attorney General can. I do not know whether these are right but  I have some concern that Articles 18, 19 and 20 seem to carry a term of 5  years' imprisonment. Now, I would like to know if that is going to be 5 years or should it say "up to 5 years"? If it is 5 years, is that about right? Is it what they do in the U.K. because I then turn to Article 22, paying for prostitution. I would not know if this is right either, establishing premises for use of prostitution is imprisonment for 7 years and a fine. The 18, 19 and 20 are all about positions of trust, children's homes, and it is I think a maximum of 5 years. So my question is: is this about right? What is it now and what do they do in the U.K. and why the difference between? It is only 2 years but it is more for establishing a place of prostitution than it is for positions of trust. I just find that a little concerning and I would like an explanation please.

2. Deputy S.M. Wickenden:

I shall ask the question, it is probably more for the Attorney General, but the Minister can decide. Under Articles 21 and on about prostitution. Is it covering services where somebody is offering their service on a website that could have multiple people and you would not be aware whether they were being coerced? I was made aware some 12 months ago by a constituent that they had found prostitution services for the Island being advertised on a website. How does that also cover things like using a hotel, because it covers brothels, as in a set leased building, but the use of a hotel, would there be any offence in that basis and how would that be covered?

3. Deputy K.C. Lewis :

Just a quick question for the Attorney General regarding offences committed outside of Jersey. Where does the actual jurisdiction end, especially when that particular country may have its own laws, penalties may be greater or lesser than Jersey's.

The Greffier of the States (in the Chair):

Attorney General, are you ready to deal with these various queries?

4. The Attorney General:

I will deal first, if I may, with the question Deputy Martin asked. In relation to the prostitution offence that she mentioned and the maximum sentence of 7  years' imprisonment, that is the maximum in England and Wales, in relation to the identical offence. The corresponding old Jersey offence had a much lower maximum sentence, as I recall. In respect of the abuse of trusts Articles 18, 19 and 20, it is quite important to bear in mind that in most areas we have not followed England and Wales strictly. What we have done of course is borne in mind throughout that in relation to persons who are under 16 any sexual conduct in relation to them is covered by other parts of the law. So the abuse of trust provisions in part 6 only relate to those aged 16 or 17 who, absent these provisions, would of course be able to and are able to form relationships with any adult. So that being the case, the 5-year maximum was thought to be appropriate in the circumstances. I hope that explains the 5- year maximum there. In relation to the question that Deputy Wickenden asked: firstly, I think in relation to Articles 23 and 24, those criminalised offering or seeking prostitution in a road or public place and advertising on public structures, and accordingly do not cover contact over the internet. As regards the use of hotel accommodation, an offence may be committed by the owner of the premises under Article 27 if he has knowledge of the use the premises he is letting are being put. In relation to the question from Deputy Lewis of St. Saviour in respect of sexual offences outside Jersey, under Article 40, that does in common parlance deal with the question of sex tourism and all the persons who are affected by the provisions of Article 40. If they carry out sexual acts, which would be an offence in Jersey, then they were guilty of an offence in Jersey and can be prosecuted in Jersey. To take an example, which I think arises from the question, if a defendant were to go to a jurisdiction where it was not unlawful to have sexual intercourse with a very young child he could, nonetheless, be prosecuted in Jersey under Article 40.

5. Deputy D. Johnson of St. Mary :

An extension of the answer just given by the Attorney General, could he clarify section 40 because my interpretation is that a British national is subject to different rules than a non-British national who is officially resident here. Am I right in thinking that a non-British national living here, who goes to a jurisdiction where, say, child prostitution is legal is not guilty of an offence in Jersey?

The Attorney General:

Article 40 extends to British nationals who habitually live in Jersey and also to non-British nationals who also habitually reside in Jersey. So it extends beyond British nationals and, in short, applies to all those who habitually reside in Jersey, subject to the condition set out in that Article.

The Deputy of St. Mary :

Sorry, I perhaps did not make my point clear. Subsection (3)(c) of section 40 says this relates to someone who is not a British national if the act constitutes an offence under the law of that jurisdiction. My reading is if it is not an offence under the law of a South-east Asian country then the person who is habitually resident in Jersey is not, in fact, committing an offence in Jersey.

The Attorney General:

That is correct in relation to non-British nationals who reside in Jersey and, to some extent, this provision is modelled on the equivalent legislation from England and Wales.

6. Deputy J.A. Hilton:

I just had a question around Article 18, abuse of trust by a sexual act against a person aged 16 or 17. Obviously it is very, very important that as parents we entrust our young people to teachers, coaches, and various other individuals and we want to know that they are safe. Can the Attorney General tell me, in the circumstances where an offence is committed against a 16 of 17 year-old by a person in trust of that young person, where an offence is reported but then it is decided by the young person and the parents that they do not want to continue with the offence how would the prosecution service deal with that individual who had been accused of doing something? What mechanism is there in place to remove that person from that position of trust? I am just very interested to know what happens in those circumstances because .. I do not know whether it still happens, but certainly with domestic abuse cases a number of years ago, as long as the prosecution service had the evidence that the domestic abuse had taken place and the victim became a hostile witness, the prosecution service would continue with the prosecution to secure .. as long as they had the evidence to secure a conviction. I am interested to know what happens in these circumstances. Also, could the Attorney General tell me whether the offence of abuse of trust could be retrospective?

The Attorney General:

Yes, these offences can apply to past acts, which predate the passing of this law. In relation to the question that Deputy Hilton asked more generally, in circumstances where a complainant and her family were to withdraw the support for the prosecution, the prosecution could indeed continue. That will be made easier by the law that the Assembly passed yesterday in relation to criminal procedure. In circumstances where a prosecution was no longer passing the evidential test or the public interest test then one would hope that other action could be taken in relation to the employment of the person in question, in any event, which would prevent him or her having contact with children at risk. While we are looking at Article 18 - I did not respond in full to the question that Deputy Martin asked earlier - I would like to confirm that liable to imprisonment for a term of 5 years means up to 5 years. I would also like to indicate that the maximum sentence of 5 years in Jersey is about the same as that which applies in England and Wales for this offence.

7. Deputy M.R. Higgins:

I am just seeking clarification from the Attorney General. If I heard correctly, he said that this law could be retrospective. My understanding of the Human Rights Law is you cannot make laws retrospective because it would be a denial of people's human rights. If it was not an offence at the time they committed it they should not be going back. Could you please clarify what the position is on the law being retrospective?

The Attorney General:

I will come back to that in a moment, if I may.

8. Deputy S.M. Brée:

I merely wish to raise the point that I raised previously when we were discussing the principles about Article 18, and perhaps my question is better directed at the Attorney General. In the event that you have a, say, 19 year-old male coach who is coaching girls aged between 16 and 17, bearing in mind the size of the Island, if the relationship between the 2 people, both of whom are above the age of consent, commences outside of the place or venue that the person of position of trust normally would occur, and yet that young man continues to coach that young lady, who is an adult under the age of consent basis, but not within this law, it is still within this law considered to be a child under part 6, what defence would that young man have should a complaint be made against him by a third party or whoever? What defence would he have? Because it seems to me here that we are saying under no circumstances whatsoever is it allowed for a person in a position of trust, irrespective of their age, to have any form of relationship with a person who is over the age of consent.

[11:45]

I just was seeking what defence would that young man have. The Attorney General:

I would like to correct the answer I gave about the retrospective effect of the abuse of trust, it would not have retrospective effect because of course these acts would not be criminal until this law was passed. So there would not be a retrospective effect in relation to these particular provisions. In relation to the point that Deputy Brée makes. It rather echoes a point that Deputy Tadier made in a question earlier on. Of course it is right that drafting sexual offences legislation is difficult because it is a blunt instrument to cover a wide multiplicity of circumstances, some of which should obviously be criminalised and others which are more difficult. The circumstance which he raises of a young man befriending and then beginning to see a 17 year-old, of course, as he says, it is covered by Article 18 and obviously in those circumstances one would look carefully at any complaint, if there were to be one, and would examine carefully if it was in the public interest to take any action of a criminal nature in those circumstances.

9. Senator P.M. Bailhache :

Listening to Deputy Brée and to the Attorney General's response, I wonder if I might just add a postscript because it might come more easily from the mouth of an elected Member than from the Attorney himself. It is, as the Attorney General has said, extraordinarily difficult for legislation to legislate for the huge range of human conditions, which obtain in relation to sexual behaviour. Ultimately, the defence which the community has is that we expect the Law Officers' Department, the prosecutors, to behave sensibly and that is why they have a discretion. It would be inconceivable, to my mind, to prosecute a young man of 19 who had a relationship with a person who was being coached of the age of 17, where there was absolutely no evidence of coercion or abuse of authority or abuse of power and where it was a perfectly natural relationship between 2 young people. The Attorney General would not prosecute in such a case. One would hope that no Attorney General would prosecute in such a case but if he did, and it came before a court, one would expect a court to grant an absolute discharge as a means of expressing their disapproval of a prosecution, which had been improperly brought. That ultimately is the protection that we all have.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on these Articles? If not, I call the Minister.

10. The Deputy of St. Peter :

Thank you to Members and particular thanks to the Attorney General. I do warn Members that he is only able to attend upon us for another 12 minutes, according to the clock .. [Aside] 42 minutes, that is excellent. Okay, so we might get to the end of sexual offences by that time, let us hope. I move the Articles 18 to 40.

The Connétable of St. Brelade :

Can I ask for Articles 18 to 20 be taken separately and the appel? The Greffier of the States (in the Chair):

The appel on 18 to 20 as a block?

The Connétable of St. Brelade :

As a block.

The Greffier of the States (in the Chair):

The appel has been called for on Articles 18 to 20. I ask Members to return to their seats. I ask the Greffier to open the voting.

The Greffier of the States (in the Chair):

We move on to 21 to 40, is the appel called for on those? Yes, in which case the appel is called for on Articles 21 to 40 and I ask the Greffier to open the voting.

The Greffier of the States (in the Chair):

We now come to Article 41 to which there is an amendment, so I am going to ask the Minister to move the Article first before we get to the amendment.

7. The Deputy of St. Peter :

Article 41,  before  discussing  this  Article,  which  performs  2  roles,  it  is  worth  explaining  the background to the first role. Under the law of Jersey defendants facing customary law offences, therefore those offences which are not created by statute have the right to elect for trial by jury. Defendants facing statutory offences do not have this right unless specifically provided for in statute. The draft law abolishes a number of customary law sexual offences, including rape and replacing them with statutory offences. Article 41 is drafted to preserve a defendant's right to a jury trial for those replaced offences by creating the new statutory offences as if they were still customary law offences. However, as the Greffier has explained, the Education and Home Affairs Scrutiny Panel has lodged a second amendment to replace Article 41, which will result in all offences under the draft law being heard before Jurats, which on reflection I have decided to support, and I move the Article.

The Greffier of the States (in the Chair):

Is the Article seconded? [Seconded]

2. Draft Sexual  Offences  (Jersey)  Law  201- (P.18/2018):  second  amendment (P.18/2018.Amd.(2))

There is an amendment, as the Minister has said, the second amendment lodged by the Education and Home Affairs Scrutiny Panel and I ask the Greffier to read the amendments.

The Deputy Greffier of the States:

Page 55, Article 41 – For Article 41 substitute the following Article – "41 Mixed indictments: mode of trial: (1) For the purpose of the Loi (1864) réglant la Procédure Criminelle, on an indictment falling within paragraph (2), the Royal Court is to decide, having regard to the nature and gravity of the offences and after hearing any submissions from the defence and the prosecution, the method by which the defendant is to be tried. (2) An indictment falls within this paragraph if it charges 2 or more offences, of which – (a) at least one is an offence under customary law; and (b) at least one other is an offence under any part of this law.".

2.1  The Deputy of St. John (Education and Home Affairs Scrutiny Panel - rapporteur):

As Members have probably now seen the Minister's comments to our amendment, it pretty much blows my speech out of the water because it was very much based on exactly the similar comments. I am going to propose this amendment by talking to the submission that the Education and Home Affairs Panel received, particularly from the Jersey Action Against Rape. They submitted to us their views that they are delighted with the fact that the Sexual Offences Law is coming in. I am not going to try and say their words otherwise .. I am going to speak from what they submit to us. "J.A.A.R. (Jersey Action Against Rape) is unsurprisingly delighted that the Jersey legislature has taken the important step of putting the prosecution of sexual offences on to a statutory footing. Jersey has been crying out for the law in this area to be modernised and it is hoped that this is the first step of many that will ultimately see the complete overhaul and modernisation to the prosecution of sexual offences in Jersey, leading to a system and process that stands up to scrutiny. Jersey Action Against Rape is particularly heartened that the notoriously difficult issue of consent has now, for the first time, been clearly defined by statute. It is hoped that the Jersey courts avoid any wholesale incorporation of English jurisprudence on the topic, seize the opportunity to learn from the difficulties that have arisen in England, and develop the law of Jersey robustly and with clarity. Jersey Action Against Rape sincerely hopes that the advent of this law will see an increase in successful prosecutions for sexual offences in Jersey. J.A.A.R. is disappointed to learn that despite the obvious advantages of trials before the Jurats the offences of rape and inciting sexual acts with young children (inter alia) will still be heard before juries. Jersey Action Against Rape wish to be clear that it has no difficulty in principle with the concept of a trial by jury. However J.A.A.R. remains concerned that the practical impossibility of effectively educating potential jurors about some of the commonly held misconceptions regarding rape and sexual assault in general will mean that it still proves extremely difficult to secure convictions for those indicted for such offences. J.A.A.R. feels that there can and should be no objection to the idea that for certain criminal cases a specialist and well-educated tribunal should be empanelled. J.A.A.R. cannot see that there can be any sensible objection to empanelling a specialist tribunal to hear a complex fraud prosecution, for example, which will potentially involve the tribunal being tasked with making decisions in relation to complicated accounting issues. Taking that example, how could it be said that a trial could possibly be fair, either for the defendant or the complainant, if there is a risk that the tribunal simply does not understand the issues at hand. Similarly, with prosecutions for rape or other sexual offences, particularly where the issue of consent is central, there are in fact a myriad of complex issues at the heart of that issue, which the vast majority of people are unfortunately not well-informed about. One only has to reflect on the well-known misconceptions in relation to rape and other sexual offences to realise that this is true. If it was the case that at least some sexual offences, such as rape and indecent assault, were always to be tried by Jurats, it would be eminently possible to ensure that a specialist tribunal was always empanelled to hear these cases. This would ensure that all of the issues that arose, such as

those which often arise with questions of consent, would be fully understood by the tribunal. This would also mitigate the risk of any misconceptions resulting in a not guilty verdict. Ensuring that the tribunal is well-informed about difficult issues can only lead to a fair trial for both defendants and complainants; if we cannot be sure that the tribunal is well-informed how can we be sure that the trial process is fair? J.A.A.R. nevertheless notes the likely increase in the incidence of sexual offences being tried by Jurats and would welcome any opportunity to work with the current pool of Jurats." That was the submission that the Education and Home Affairs Scrutiny Panel received and is one of the main reasons for us bringing this particular amendment. I know there are a number of people that have approached me and spoken to me about this and are particularly uncomfortable and I have been asked many times: is it right that somebody can choose not to be tried by a jury? That is already the case. There is a position where in criminal cases that people are tried only by a judge and Jurats. The reason why I believe this should be treated in a similar vein to those particular areas is that what we have done today, what we are doing with the Draft Sexual Offences Law, is creating a technical piece of legislation, which codifies consent, which codifies a defence in particular circumstances, and I think we should not underestimate how complex these cases can be. The issue here in itself adds to the difficulty of a jury's job as these disputed sexual acts tend to take place in private, resulting in little availability of witness or C.C.T.V. (closed circuit television) evidence at crucial points in time. Further still, unlike other crimes, D.N.A. (Deoxyribonucleic acid) evidence in rape cases where the accused is known to the victim is often of little value displaying only that the sexual act happened, not whether this took place with consent. Arguably even more damaging are the negative attitudes jurors in society more generally hold towards victims of rape, where the victim's, not defendant's, actions come under the most Scrutiny. Substantial research has shown inaccurate beliefs around how a real rape victim behaves and typical motivations for claiming rape are so profound that judges now routinely warn jurors against drawing upon these rape myths when making decisions at trial.

[12:00]

However, the extent to which these instructions are taken into consideration remains questionable. Of course it is very difficult, once a case is over, and if a verdict has been found of not guilty in these cases, to ask the jury how or why they deliberated and why they ended up choosing this particular path. It is very difficult to know exactly what went wrong during that case and whose argument beat whose argument, and why the juries fell on that basis. But there has been research done. There has been extensive research done right across the world, especially in recent years, which is the psycho- legal analysis and it is referred to in the Minister's comments, whereby they have done mock trials and they have done psychological analysis on why people think the way they do during a criminal case, such as rape. It has been shown that there is an amount of bias. It is quite a large proportional amount of bias rather than considering the actual legal context in which the arguments are made in court. That is as summarised as I can make this. I hope Members will ask any questions that they feel they have to. I will try and answer them in the best vein that I can. I hope Members will be respectful of course of the particular issues around this. I am not bringing this because I do not believe the public are not capable. I do not believe this because I do not believe in juries. I am bringing this for exactly the summary that I have given to Members and I look forward to hearing comments.

The Greffier of the States (in the Chair): Is the amendment seconded? [Seconded]

1. Senator P.M. Bailhache :

I do not believe that the Minister should have agreed to accept this amendment for a number of reasons. Firstly, it is not an amendment which is based upon rigorous and balanced examination of the facts, which is the standard duty of a Scrutiny Panel. The Scrutiny Panel accepted a submission

from an interest group, which has very worthy objectives. Who would not be against rape? But the solutions that the group have suggested are not, in my view, appropriate and certainly should have been considered more carefully by the panel, and if I may respectfully say so, the Minister as well. The Minister discussed this with the Council of Ministers a few days ago and was aware that the research had not been carried out by the Scrutiny Panel. The Minister endeavoured to compensate for that failure to carry out research by going to see the Bailiff so as to obtain a view from the judiciary. I do not wish to touch on the views expressed in the Bailiff 's note circulated this morning to the Assembly, but I only wish to make the point that consultation should be done in a timely way to give people the opportunity to reflect upon the advice that they are giving to those who are consulting, and that did not happen in this case. It appears that we are being invited to take another decision without the opportunity to give it proper and mature consideration. Secondly, and more seriously perhaps, it seems plain from what the chairman of the Scrutiny Panel has said, although I am not clear whether it is the view of the panel or whether she was merely reciting the views of the interest group, that the purpose of the amendment is based upon a desire to obtain a higher success rate, which is a euphemism for obtaining more convictions. It does not matter that that purpose is unlikely to be successful. Trial before the Jurats might very well yield exactly the same results as trial before a jury. It is just that to propose an amendment to the law with the purpose of securing a higher success rate in criminal proceedings is, in my view, improper. It is certainly contrary to the overriding objective in criminal proceedings, which we were discussing only yesterday, which is to do justice. Doing justice means that one endeavours to ensure that the guilty are convicted but also that the innocent are acquitted. One cannot assume that merely because a prosecution has been brought that the defendant is guilty. The purpose of a criminal trial, I repeat, is to do justice. Thirdly, I do not believe that juries are as unreliable as some might suggest. Each trial is of course different, but Members might find it helpful to learn what a trial judge says in a standard direction to the jury in a rape trial, and what I am going to quote to Members comes from material which is on the internet, available to be looked at, and is the kind of direction which would be given by a judge in a rape case. He or she would say this: "Please also remember this, it is obvious but it is important. A drunken woman, if you think the complainant was, is just as entitled not to be raped as a sober woman. The consumption of alcohol does raise issues, which will be addressed later, but rape is rape, whether you personally could envisage yourselves ever getting into the position in which the complainant found herself when she took herself off to the defendant's bedroom or not. So I must give you this warning, it is understandable that you might come to a trial of this kind with preconceived notions of what constitutes rape or what kind of person is a rapist or is raped or how a person who is raped would behave. It is important that you leave any such assumptions or preconceived notions behind you. Some victims of rape noisily object and fight. Others are silent. Others freeze. Experience has shown us in the courts that the offence can take place between all kinds of different people who react in a variety of different ways. Please make your judgment entirely and strictly on the evidence that you have heard." A jury of 12 people drawn at random from a list is likely to be a group of people with widely different experiences coming from widely different backgrounds in life. They are, in my view, just the sort of people who are appropriate to draw a judgment on the behaviour of their fellow human beings; fairly and objectively. Mostly, in my experience, I must say juries tend to get it right. The fourth point I want to make is that right to trial by jury is an important constitutional right. It should not be swept away on a whim without very serious consideration and the opportunity to look at the proposal in the round. This is a proposal that has not been given that kind of consideration and, in my view, it should be rejected, and I am certainly going to vote against the amendment.