Publication

Consent at 16: protection or persecution?

By 
Peter Tatchell

Peter Tatchell argues that young people under 16 have a right to make their own sexual choices without being victimised by the law

Half the population have their first sexual experience before the age of 16, according to The National Survey of Sexual Attitudes and Lifestyles, which interviewed nearly 19,000 men and women in 1990-91. The most comprehensive sex research ever conducted in Britain, it found that among the younger generation of 16 to 24 year olds, the average age of first sexual experience (not necessarily intercourse) is 13 for men and 14 for women.

Under Britain's antiquated sex laws, however, any sexual contact involving a person under 16 is illegal, even mere caresses and petting. No one below that age - no matter how mature and well-informed - is deemed capable of consenting to a sexual act. Consensual sex involving underage youths is automatically branded a crime by the law. It is either indecent assault, unlawful sexual intercourse or buggery (depending on the nature of the sexual act and the sexes and ages of the participants).

Consenting sex with a girl or boy under 16 is deemed an indecent assault and is punishable by up to 10 years jail. Life imprisonment is the maximum penalty for both anal intercourse with a person (male or female) under 16 and for vaginal intercourse with a girl under 13.

These draconian penalties apply where one partner is under 16 and the other is over 16, and also where both partners are below the age of 16 and of similar ages. This legal harshness doesn't protect young people; it victimises them.

Sexual human rights

Our society should, surely, uphold the sexual human rights of all young people, not just the over16s. But, terrified of being accused of condoning child sex abuse, most civil liberty and child welfare organisations refuse to support the right of the people under 16 to make their own decision about when they are ready for sex.

It was not always like this. Many well respected and responsible organisations and individuals have, in the past, urged a rethink on the age of consent. Back in 1976, the National Council for Civil Liberties (now Liberty) campaigned for an age of consent of 14. Its aim was to reduce the criminalisation of young people involved in consenting sex, and lessen the legal obstacles to earlier, more effective sex education in schools. A similar policy of consent at 14 was adopted by the Howard League for Penal Reform in its 1985 manifesto, Unlawful Sex, which set out proposals for revision of the criminal law.

An age of consent of 14 was also supported by the former Bishop of Woolwich, the late John Robinson, and is currently advocated by the ex-Bishop of Glasgow, Derek Rawcliffe.

What is somewhat surprising is that, today, none of the child protection and human rights organisations seem willing to question the ban on sex before 16. The lesbian and gay rights group OutRage! is more or less alone in challenging the conservative consensus. It argues that young people below the age of 16 should be free to enjoy sexual relationships without being penalised by the law, providing both partners give their consent and are mature enough to understand the implications of their actions.

The age of consent: European comparisons

An age of consent of 16 is unfair and unrealistic. It is a head-in-the-sand attitude which does not reflect the behaviour and experience of at least 50 per cent of the younger generation, who have sex before their sixteenth birthday and do not feel abused. The issue is not whether these young people should have sex, but whether they should be criminalised for consensual relations, which may often be mutually sincere, loving and supportive.

Most other European countries have far more sensible policies. In 20 neighbouring states, the age of consent is already lower than 16. The minimum age is effectively (with some qualifications) 12 in the Netherlands, Spain, Portugal and Malta. It is 14 in Slovenia, Iceland, Montenegro, Serbia, Italy, San Marino, Albania and. in certain circumstances, Germany. All these laws apply equally to hetero and homo sex.

None of the governments backing these comparatively low ages of consent did so without careful research and consideration. Their parliaments would have never voted for such age limits if they thought it would put their young people at risk.

Contrary to unfounded fears in Britain, these lower ages of consent have not increased the sexual abuse of young people. They have adequate protection through the laws against rape and indecent assault. Moreover, contrary to the claim that Britain's tough consent laws exist to protect youngsters against exploitation by adults, the very young also get penalised. Indeed, the law is very confused and contradictory. It may sometimes protect, but it can also persecute.

The age of responsibility

The double-standards are startlingly evident with regard to the definition of when a person is deemed to be legally responsible for their behaviour. Although the age of criminal responsibility is ten, people under the age of 16 are said by the law to be incapable of sexual consent. The implication is that a decision to have consensual sex is more serious and complex than a decision to commit robbery or rape. The 10 year old killers of James Bulger were declared old enough to know what they were doing and be convicted of murder. But if they had had sex with each other, and said they had consented, the courts would have ruled that they were too young to understand what is involved in a sexual relationship.

Since children can be held responsible for criminal behaviour from the age of ten, it is surely illogical for the legal system to maintain the fiction that everyone below 16 is unable to consent to sex.

The law needs to be consistent. Lifting the blanket ban on sex under 16 would begin to tackle this anomaly, removing the threat of criminalisation from sexually-active under-age young people. Nevertheless, any minimum age - whether it is 16 or 14 - is inevitably arbitrary and fails to acknowledge that different people mature sexually at different ages. A few might be ready for sex at 12; others not until they are 20. Having a single, inflexible age of consent doesn't take into account these differences. It dogmatically imposes a limit, regardless of individual circumstances.

A new legal framework

There should be an element of flexibility in the age of consent. Whatever we decide the age of consent should be, sex involving young people under that age could cease to be prosecuted, providing both partners consent and there is no more than three years difference in their ages. A mutually agreed relationship between a 13 year old and a 15 year old, for example, perhaps should not result in legal action. Similar flexibility in the age of consent already exists, to varying degrees, in German, Swiss and Israeli law.

Reform along these lines would acknowledge the reality that many under-age young people have sexual feelings, and some experiment sexually with each other, even before their teenage years. Having a maximum three-year age gap would give the underaged greater legal leeway to make their own choices about who they have sex with, while also offering them protection against pressure and manipulation by those much older.

If the objective is to prevent the penalisation of victimless sex, then changes in the age of consent need to be backed up with legally-binding guidelines to judges; where the three-year age difference is violated, any punishment should, arguably, be contingent on, and commensurate with, harm being done. In other words, if no harm has been inflicted, punishment is inappropriate and the courts should, at most, impose a counselling order to ensure that the pair are advised about contraception and safer sex. Additionally, any lowering of the age of consent needs to go hand-in-hand with candid, compulsory sex education in all schools, from primary classes onwards.

An age of consent of 16 is unsatisfactory in every respect. It criminalises consensual sex and inhibits the provision of detailed advice on how to deal with unwanted sexual advances, contraception, safer sex and problems in relationships. What is needed is a new legal framework for the age of consent that can balance the sexual rights of youth (which include both the right to say 'yes' to sex and the right to say 'no'), with laws that protect them against sexual manipulation.


Peter Tatchell is a spokesperson for the queer rights group OutRage! and the author of the gay sex education manual, Safer, Sexy - The Guide to Gay Sex Safely (Freedom Editions/Cassell, 1994).