On Mon, 05 Jun 2006 08:34:06 GMT, "John Briggs"
Post by John BriggsPost by Alex HeneyOn Sun, 04 Jun 2006 19:21:54 GMT, "John Briggs"
Post by John BriggsPost by Alex HeneyOn Sun, 04 Jun 2006 14:27:50 GMT, "John Briggs"
Post by John BriggsPost by Alex HeneyOn Sat, 03 Jun 2006 20:44:57 GMT, "John Briggs"
<snip>
Post by John BriggsPost by Alex HeneyPost by John BriggsDo you spot the differences?
Yes.
It was changed, in order to remove the requirement that the person
live in their own home.
"Why?" would be a good question.
Maybe.
Post by John BriggsIt only referred to someone who lived in
their own home because the other subsections applied to people
living in residential care. The main difference, of course, is
widening "personal care" (which is all that it was intended to apply
to) to "a provider of care, assistance or services".
Do you have any evidence of what it was "intended to apply to"?
The original Bill.
That is not evidence at all.
Like most bills, as defects were identified, they were changed.
That does not mean that the original bill showed what it was intended
to apply to, while the actual act is different.
It usually shows that the original draft had overlooked various
things.
Evidence
Post by John BriggsPost by Alex HeneyI would presume it was widened because they decided it should not
apply only to that.
"They" being two different sets of people, of course.
Not entirely.
Post by John BriggsPost by Alex HeneyPost by John BriggsPost by Alex HeneyPost by John BriggsSection 42 only applies to Sections 38 to 41,
which deal with people in care homes
Wrong.
Sections 38 to 41 deal with *care workers* having sex with people in
their care who have a mental disorder.
Care workers are defined at section 42, which has three subsections
defining who falls under the definition of care worker. Only the
first of those three involves people in care homes.
As originally drafted, the first three subsections involved people
in care homes, and the fourth applied to people receiving personal
care in their own homes. Do you see a pattern there?
Yes. They didn't get the original drafting covering all the situations
they wanted to cover.
So they changed it to make sure it did.
"They" being different people, of course. Leaving a "catch-all" clause in a
part dealing with care homes.
No.
It isn't a apart dealing with care homes.
It is a part dealing with those being cared for due to a mental
disorder.
SOME of those are in care homes.
Post by John BriggsPost by Alex HeneyPost by John BriggsPost by Alex HeneyPost by John Briggsin this case, a vulnerable person
being cared for in their own home), where the question of consent
wasn't considered to be necessary,
No, a vulnerable person being cared for. Wherever that may be.
Yes, but the whole point is that a "vulnerable person" is someone
who is unable to give consent.
No it fucking isn't.
That is the point of sections 30-37.
The whole point of sections 38-41 are about abuse of a position of
trust.
Specifically by "care workers" - and usually in the context of residential
care.
Yes, specifically by care workers.
It may be that the situations are usually when they are in residential
care, but I am by no means convinced of that.
It certainly (and rightly) is not intended to only apply to people in
care homes.
Post by John BriggsPost by Alex HeneyPost by John BriggsAll that it says is that the victim is unable to give
consent. If that test is satisfied, there is no reason to not
prosecute anyone. The only difference in Sections 38 to 41 is that
the victim is receiving residential care and is presumed to be not
able to give consent. I suggest that you consult the original bill,
where the distinction is clearer.
The original bill was *changed*. It was changed because it didn't do
what the people drafting the law wanted it to do.
In this case, people re-drafting the law. It was changed as a result of
an avalanche of amendments in the Lords. It then got involved in
'ping-pong' between Lords and Commons as the Government tried to undo some
of the amendments. They capitulated rather than lose the Bill at the end of
the session.
Post by Alex HeneyIt wasn't changed by accident.
In fact it is quite clear from the Hansard debate that they wanted to
make the definition as broad as possible.
<http://www.publications.parliament.uk/pa/ld200203/ldhansrd/vo030609/text/30609-12.htm>
That just shows the Minister caving in to the amendments.
Rubbish.
It shows the minister suggesting that those amendments be withdrawn
because he thought the wider phrase he had put in was better than a
prescriptive list.
Post by John BriggsPost by Alex HeneyThere were quite a few parts of that bill that were changed very
significantly before it became law, mainly because the original
drafting either left out things they wanted covered, or covered things
that should not have been (The original draft of the Exposure clause
would have virtually outlawed naturism, for instance).
What was or was not covered depended on the obsessions of the Noble Lords.
At the last minute the definition of incest was changed - a long-term
obsession of the Religious Right - despite the Minister having previously
rejected it.
Which could mean he "caved in", or it could mean he was persuaded of
the sense.
Post by John BriggsPost by Alex HeneyPost by John BriggsPost by Alex HeneyPost by John BriggsAs I said, he was guilty of
poor drafting, when the scope of the Bill was drastically widened,
upon it being ambushed in the House of Lords by the Religious
Right. Even so, it was probably never intended to cover the
circumstances reported.
I am absolutely certain it *was* intended to cover exactly the
circumstances for which this Social Worker rightly pleaded guilty.
Well, it's certainly not there in the original Bill.
Which is beside the point.
the original bill is not what got enacted, nor does it bear very close
relationship to what got enacted in many places.
Actually, Section 42 is very close, except for the vastly broadened scope of
Subsection (4). It was a Government Bill, introduced in the Lords where it
got savaged. The Commons paid little (or no) attention to it (Edward Leigh
was an exception.)
It was introduced as a response to the "Setting the boundaries"
consultation. But it was not well drafted originally. There were quite
a few parts which would not have met the requirements.
Post by John BriggsPost by Alex HeneyPost by John BriggsWho knows what the
Religious Right really intended? These are the people who extended
the definition of incest (between adults) at the last minute.
I don't think this had anything to do with the "religious right".
They were certainly behind a lot of the other amendments (certainly the
incest one).
Very possibly. I haven't paid much attention to the section.
Post by John BriggsI must admit that it is difficult to tell one group of
sex-obsessed Lords from another. I was unable to find any debate in the
Commons at all! Look up "The Christian Institute" some time. Spookily,
Baroness Young influenced this Act from beyond the grave!
Post by Alex HeneyPost by John BriggsPost by Alex HeneyIt is intended to treat those involved of the care of a mentally
disordered adult in the same way as the abuse of a position of trust
sections treat teachers etc. who have sex with their 17-18 year old
pupils.
Exactly - those who are not adults, or who are incapable of giving
consent as adults.
Not at all.
Those with whom it would be perfectly legal to have sexual activity if
you were NOT in that position of trust relative to them.
OK, so explain why it only applies to "mental disorder" and not physical
disability?
Because the mental disorder is considered to make them more likely to
respond to the attentions of somebody in a position of trust.
Just as it is with a 17-18 year old child.
It is not something which is considered to impair their ability to
choose as defined by section 30, just as the 17-18 year old child is
normally considered able to consent. so it is perfectly legal for
anybody not in that position to have sexual activity with them (either
the child or the mentally disordered adult).
The law in sections 16-22 and that in sections 38-42 is intended to
have very much the same effect, for very much the same reasons.
--
Alex Heney, Global Villager
To define recursion, we must first define recursion.
To reply by email, my address is alexATheneyDOTplusDOTcom