Age of consent (not) going to be lowered?

Professor John Ashton

Introduction

On 17th November 2013 Professor John Ashton, President of the Faculty of Public Health, called for the age of consent to be reduced from 16 to 15.

Despite him being an eminent scientist, the Government has moved very quickly to dismiss it out of hand – ““We reject the call to lower the age of consent. Current age is in place to protect children and there are no plans to change it”. They did not address any of the arguments put forward.

 

What’s the current position

Basically, someone under the age of 16 cannot consent to any sexual activity. But it’s actually slightly more complicated than that.

For the more serious offences such as rape, factual consent is a defence if the complainant is aged 13-16. There are separate offences  that can be charged in those circumstances (see Sexual Activity with a Child) where consent will be a defence if the defendant reasonably believes that the complainant is over the age of 16.

Under the age of 13 the consent of the complainant is no defence (see ss5-7 Sexual Offences Act 2003).

Also, there are lower penalties for some offences if they are committed by someone aged under 18 (s13 Sexual Offences Act 2003).

There is also another anomaly in that whilst someone aged 16-18 can consent to any sexual activity, they cannot consent to having a photograph or video of themselves taken that is ‘indecent’. See here for some discussion of the issues surrounding this.

 

What are the arguments?

There are good (and bad) arguments on both sides. An example of a bad argument can be seen given by our Deputy Prime Minister ‘I am not in favour of that. The age of consent has been a British law for generations in order to protect children‘.

That’s not entirely true. In fact, it’s not true at all. Far from being the law for ‘generations’, the age of consent has been as it is now for less than 3 years in Britain.

Prior to 1st December 2010, the age of consent for males in Scotland was 14 for example. It was only in 2001 that the age of consent for homosexual sex was made 16.

Mr Clegg may have been a bit anglo-centric there. In fairness, the age of consent in England for heterosexual sex has been 16 since 1885, which may count as generations, so we could give him the benefit of the doubt. Politicians never lie of course.

 

Conclusion

Of course, much has changed since 1885. The fact that a law has been in place since the 19th Century, does not mean that it should still be in place now.

Marital rape is a good example -the exception that meant a man could not rape his wife was in place for over a hundred years after 1885, supposedly for the protection of marriage. Rightly, that was considered, and considered to be outrageous nonsense, and was repealed.

Personally, I think it’s time to look at this again, particularly when the age of consent is so much higher than the age of criminal responsibility.

 

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

11 thoughts on “Age of consent (not) going to be lowered?

  1. sisterhooduk

    Are you seriously comparing the age of criminal responsibility to the age of consent, that appears on the face of it to be a non sequitar. The AOC is there to protect children from predatory adults and also to protect them from themselves because they lack the maturity to understand the consequences of what they are embarking on. If there has to be an arbitrary cut off point sixteen seems preferable, to anything lower than that, it is an age when they can go out to work full time, under sixteen when they legally have to attend school and are in any case they are still a child. Why can’t our children be allowed to have a childhood without this pressure to become sexualised too young and too soon. I sadly find myself in the position of agreeing with David Cameron. I am not in favour of changing the age of consent except if it were to raise it to eighteen.

    Reply
  2. Dan Bunting Post author

    The main point of the post is looking at what the law currently says, and also saying that important legal debate shouldn’t be dismissed in the way this was, without any attempt at a debate.

    But yes, I think age of consent vs criminal responsibility is a worthwhile comparison. If, as you say, a 15 (or even 17) year old “lack[s] the maturity to understand the consequences of what they are embarking on” then how on earth can we say it is right to penalise every ten year old who breaks the law?

    Whilst of course children need protecting, should we be criminalising the 15 year old girl who kisses her 15 year old boyfriend, as well as the predatory adult?

    Reply
  3. duncanheenan

    I’m in agreement with Sisterhood in most of what she says.
    The exception is where she says that children legally have to attend school until they are 16. I think that should be 17, and it’s about to become 18, if ‘full time training’ is included . https://www.gov.uk/know-when-you-can-leave-school .
    Talk to most teachers and they think that it is daft to try to keep 17 year olds at school when they really don’t want to be, but I guess it’s done as much to keep them off the unemployment statistics as much as for any education they may get.

    Reply
    1. duncanheenan

      That ignores whether people are capable of giving informed consent. The law rules that no one under the age of consent can give consent because they are incapable. It may not be what you want, but it is the law, and it is there because everyone is different in how capable they are in making the right decisions for themselves. Age may not be the right criterion, but at least it is clear and unarguable. Some people never reach a stage od development where they can make sensible decisions. Would you say a 7 year old should consent to sex, just because they saw it on TV and think it is ‘cool’ ?
      Age is a blunt instrument, but it is better than no instrument.

      Reply
  4. Andrew

    Sisterhood: there does have to be a cutoff point and in the nature of things like all upper and lower age limits it is arbitrary. Some fifteens know perfectly well what they are doing and some sixteens don’t; and the same is true whatever age you pick. In Ireland (both parts) it’s seventeen (and I don’t suppose that stops many Irish sixteens!) and in Denmark it’s fifteen – I think in France too – and these are all perfectly rational ages.

    There will always be some relationships which are unlawful but not in fact exploitative; and some which are lawful but stink. That’s life.

    Duncan is right about when you can leave school; not sixteen any more. But you are dead right about the age of criminal responsibility being a red herring in this debate.

    Reply
  5. Dan Bunting Post author

    I think a fairer compromise would be to say 16, but 13 if the difference between the parties is under 3 years or something like that. It is also arbitrary, but provides protection for children who are being preyed on by adults, whilst not criminalising teenagers who are consensually experimenting.

    Reply
    1. mstonn

      Your proposal about age difference is fair as I wouldn’t want to criminalise consensual experimentation amongst those people who are sexually immature.

      Reply
  6. mstonn

    When I say sexually immature I mean prepubescent. So when a person reaches puberty consensual sexual experimentation could be legal but illegal with persons 5 years older?

    Reply
    1. duncanheenan

      Physical ‘maturity’, of youngsters doesn’t always mean the ability to act in their own best interests. In fact in my experience, it rarely does. Looking at my own life, and my children and grandchildren, I can see that, with hindsight, the lower teens is a very dangerous time, because few kids have the mental & social equipment to deal with their physical equipment in a responsible way. Hormones rule at that age, and lots of cold showers and sport is not enough to keep kids safe from themselves and others. Parental care is the proper answer; but not all parents are good and not all kids will respond to it, so the Law provides a backstop.

      Reply

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