Liberal Democrats have long-championed the rights of young people. We were the first major party to call for the voting age to be lowered to 16. We were the only party in 2010 which committed to incorporate the UN Convention on the Rights of the Child into UK law. In government, we have ended the detention of children for immigration purposes. But in one area of personal freedom and development, we remain distinctly illiberal: the age of consent.
In response to the recent calls from Professor John Ashton, president of the Faculty of Public Health, to lower the age of consent to 15, Nick Clegg highlighted the problems in the provision of sex education and the high levels of teenage pregnancy, but rejected any reduction in age of consent, saying:
“Do I think simply a blanket reduction in the age of consent is the answer to this difficult dilemma? No.”
We all want to live in a country where young people have the confidence to wait until they are emotionally mature enough to have sex, free from any pressure or manipulation, and with excellent and age-appropriate sex education empowering young people to make the right choices. We also all want to protect young people from sexual abuse and exploitation. The blunt instrument that is the criminal law, is however, an inappropriate means by which to achieve these aims.
What an age of consent of 16 in the criminal law does is to make every person who has sex under the age of 16 a criminal. The Second National Survey of Sexual Attitudes and Lifestyles conducted in 2000 found that over one in four men and over one in five women had had sex under the age of 16 and surveys since then have given ever higher figures. That means millions of people have committed criminal offences, and yet how many of us would want to see them punished for it?
Criminal offences which are not respected, obeyed or prosecuted should no longer be criminal offences. It can lead to young people feeling fearful of accessing sexual health services if they know that what they have done (or want to do) is a crime. It is not the purpose of the criminal law to send a message of what society thinks people “should” do, or what is best for them, but only to punish people when their actions harm – or risk harm – to others. As per J.S. Mill’s well-known harm principle, “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. Unless harm is caused by persons under the age of 16 having sex, their actions should not be criminalised, and the overwhelming majority of cases, no harm is ever caused.
As a liberal, I believe that sexual intercourse should not be a criminal offence unless there is manipulation, pressure or coercion (i.e. harm) involved. The age of the parties is not the sole determining factor in establishing whether this is the case. I believe that we can both protect children and respect their sexual autonomy by reforming our age of consent laws to make them more nuanced, reducing the age of consent to somewhere between 12 or 14, but introducing a “close in age” exception such that, until both parties are 16 or older, it will remain an offence if there is an age difference of more than three years. This allows for children to explore their sexuality with others of a similar age, but protecting them from the kind of pressure or coercion that can occur when one of the parties is much older. Close in age exceptions exist in number of other European countries, such as Austria, Croatia, Greece, Hungary, Italy, Sweden and Switzerland.
We should better equip our education system, healthcare services, and support to parents in teaching children about sex, their right to wait until they are ready, and empower them to make the right choices. But the threat of criminalisation is entirely inappropriate and should cease.
* Richard Wingfield is a Liberal Democrat member from Vauxhall and works as a lawyer for a human rights organisation.
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29 Comments
Speaking as someone who is/was a criminal under this law, I worry about a blanket reduction in the age of consent; I know what it was like to be underage and sexually active, and I remember thinking I was fine with what I was doing and grown up enough to handle it. I don’t think I was necessarily correct in that. TBH I’m pushing 36 now, and happily bi/poly, and there’s still some situations where I worry if I’m emotionally equipped to deal with things…
I like the system they have in some US states where they take account of the age of both participants; if two fifteen year olds are going at it that’s a lot different to someone of my current age cougaring a fifteen year old.
(somehow missed a “too” out of that second paragraph)
I TOO like the system, etc.
@Jennie
Completely agree. Especially the approach you mention.
To some extent it seems to me the current law already does this, as indicators of underage sexual activity appear to trigger an assessment rather than anything else. If the assessment finds that the young person in question is at no risk of harm, the other person is not in a position of trust etc., then no further action seems to be taken beyond supporting the young person’s wellbeing.
Incidentally, re “It can lead to young people feeling fearful of accessing sexual health services if they know that what they have done (or want to do) is a crime” is there any evidence that this is a problem? I’m not asking in the belief that it isn’t: I’m wondering whether it is, to what extent it is and what else could be done about it?
I’ve not seen any evidence that reducing the age of consent won’t just move the problem so that in a few years we just lower all the ages given in the above article by 1 year.
No 16 is very clear as it also links in with other rights that are granted by our society at 16. Jennie, is right what is needed is for the system to take account of the ages of both participants and the nature of ‘relationship’; or are we saying that it okay for a 28+ year old teacher to have a relationship with a 15 year old?
To me the blanket lowering of the age of consent would seem to encourage paedophiles and other predatory activities.
Yes – the problem is that pretty well all the arguments in the article are arguments against an age of consent per se, not against the age of consent being 16 rather than 14 or 12.
And while the difference between the ages of the parties is relevant, it can’t be as simple as saying sex will be legal provided the age difference is no more than 3 years. Surely the point is that there’s an age below which people have to be protected by law against sexual predators, because they don’t have the maturity or experience to protect themselves. And sexual predators aren’t limited to those 10 or 20 years older. They could even be younger.
Maybe there’s an argument for lowering the age of consent, but I don’t see one in the article above.
I would support this, but access to advice and other services is not the right reason because we in any case need a solution that makes it clear that these things are legally available to 13/14 year olds too.
My reason is simple enough – that you tend to know yourself when you are old enough and if you are not ready you don’t need to do it till you are 17, 18 or 25, regardless of the legal position.
What we really need to deal with, is the legal fiction that if two 13 year olds decide to have sex then that means that the boy attacked the girl. In other words that people in that age range are not mature enough validly to decide to have consensual sex but are mature enough validly to decide to force someone.
Age of consent in Europe varies from 13 in Spain to 18 in Malta. Most set the age at 14 or 15.
I disagree. Lets start with some of the claim that the age of consent of 16 makes people criminals – that is not really the case – the age of 16 is there to protect people. That is well understood by the Police and the courts. How many prosecutions are brought against consenting under 16’s in a normal relationship.
Clearly JS Mills harm principle applies.
” but protecting them from the kind of pressure or coercion that can occur when one of the parties is much older”
Do you not think children of a simailar age can infict presuure and coercion. Do you not think that some older people will put pressure, coercion or induce 13 year olds to have sex with each other.
Do you not think ‘exploring their sexuality’ is very misleading way of saying doing something they are do physically or emotionally ready for.
The status quo is to have no enforced age of consent at all, so arguments about the current law protecting anyone are incorrect.
@Richard S
I recommend having a read of the guidance that gets handed out about these things. From an East Sussex document that just happened to be the first one on Google:
“Sexual activity with children under 13 is always illegal as children of this age can never legally give their consent. There should always be a referral made to the Social Workers or the Police in these circumstances.
Although the age of consent is 16 years, there is no intention to prosecute young people of a similar age involved in mutually agreed consensual sex unless it involves abuse or exploitation.
Under the Sexual Offences Act young people still have a right to confidential advice on contraception, condoms, pregnancy and abortion even if they are under 16 years old. 2 The Act states that, a person is not guilty of aiding,
abetting or counselling a sexual offence against a child where they are acting for the purpose of:
· protecting a child from pregnancy or sexually transmitted infection,
· protecting the physical safety of a child,
· promoting a child’s emotional well-being by the giving of advice.
This exception, in statute, covers not only health professionals, but anyone who acts to protect a child, for example teachers, School Nurses, Connexions Personal Advisers, youth workers, social care practitioners and parents.”
“In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual relationship between those involved. Power imbalances are very important and can occur through differences in size, age and
development and where gender, sexuality, race and levels of sexual knowledge are used to exert such power. (Age may be a key indicator e.g. a relationship between a 15 year-old girl and a 25 year-old man). Also relevant is whether a young person has a learning disability or other communication difficulty that could hinder their capacity to communicate easily that they have been abused. There may also be an imbalance of power if the young person’s sexual partner was in a position of trust in relation to them.”
How does that sound like “no enforced age of consent at all”? To me it sounds extremely sane.
This article is completely half-baked. You spend five and a half paragraphs arguing against the principle of an age of consent, then suddenly throw in your own arbitrary (though vague) suggestion of a different age of consent. Every argument you make against an age of consent of 16 could just as meaningfully be applied to an age of consent of 14.
As others have pointed out, your fundamental error is to characterise the existing law as some sort of blunt stick when it patently is not. The way the law is applied, as described by daft ha’p’orth’s source, seems eminently sensible; if it ain’t broke, don’t fix it.
An age gap set between the couple of three years sound a good idea but both should be made to use contraception as I fear a huge increase in one parent families being cared for by the state. I would also like to see more sex education in our schools and from parents.
‘
daft ha’p’orth’ has the right of it with his legal quote . I have a different point to make though. For me, the age of consent should tie-in with all the other rights and obligations that young people take on as they reach the appropriate age. The ages of sexual consent, taxation, military service and the right to vote should all be pegged at the same age. What that age ought to be is a whole different debate, but 16 would seem to be a logical starting point.
If the exceptions can be specified in a way that allows them to be applied in a class, gender, age, and orientation – blind way (not just – I don’t like the feel of this), then the should be incorporated into the law, not prosecution guidance. Would we also support outlawing driving a car, but using prosecution only in cases where cars were driven abusively (i.e. dangerously). Not if we want to live in a civilised society based on objective law and not executive caprice.
the law needs reform, without doubt, but equally without doubt in my mind is that the ‘age’ should remain at 16. What should change is the status of the ‘offence’ and the sanction. When two young people follow their instincts that’s fine, it’s about mutual consent; what should be the heinous crime is predation by an older person, coercion, and force, but then we know that the law around rape needs reform, and surely this is an extension of that.
The only age related thing that must change is the voting age.
Personally I totally support Peter Tyzack’s suggestion that “the law needs reform, without doubt, but equally without doubt in my mind is that the ‘age’ should remain at 16. What should change is the status of the ‘offence’ and the sanction. When two young people follow their instincts that’s fine, it’s about mutual consent; what should be the heinous crime is predation by an older person, coercion, and force, but then we know that the law around rape needs reform, and surely this is an extension of that”
As for the voting age, well it is in my opinion ludicrous that someone can marry, set up a home, have children, enter full-time employment (not necessarily in this order) at 16 but cannot vote.
@R Uduwerage-Perera
@Peter Tyzack
Re. “law needs reform, without a doubt”
What evidence is there for this? I am asking quite seriously for evidence that demonstrates where and when the present law fails. Are kids regularly prosecuted unfairly? Do patterns of enforcement demonstrate systematic prejudice in the UK, and if so, what is the nature of this effect? Are kids really afraid to seek support on the grounds of the law?
Someone must’ve studied this.
@daft ha’porth – You yourself post that E. Sussex think that differences in race could be relevant in some cases.
I think whether or not the parents complained, whether or not the couple had split up in the meantime, whether or not one of the kids regretted it afterwards and so on could possibly influence decision making if there are not objective rules. To the extent that there are objective rules being used they should be incorporated into one place in statute and not hidden away – that is what user-friendly legislation is all about.
@daft ha’p’orth, it was partly your argument that won me over so I am not sure what more you wish to know? Regarding the diversity matters it may be semantics but although there may well be Cultural difference regarding the appropriate age of consent, I would suggest that ones Race has nothing to do with this.
Crude solution to a complex problem. I understand that Holland has a tiered system where two people under the age of consent are not prosectued but the bigger the age difference, the greater the crime. A solution like this seems more effective than a blanket reduction in the age of consent.
@Jennie, We do have a number of laws already in place which protect young people from grooming and from people abusing a position of trust, but the “close in age” exception which I propose adds to this by retaining an offence to have sex with someone under 16 with an age gap of more than three years. As you say, many US States do this successfully.
@daft ha’p’orth, The sentence about the need to ensure that young people have access to sexual health services, whatever their age, comes from Ashton’s comments that that “Because we are so confused about this and we have kept the age of consent at 16, the 15-year-olds don’t have clear routes to getting some support”. I’ve also looked at the comments from Steve Blake of Brook, the largest sexual health charity in the UK. Despite wishing to retain an age of consent of 16, he also states that research shows young people “need to know they are highly unlikely they will be criminalised if they have consenting sex with somebody who is about the same age”. While the age of consent remains 16, there will always be a risk of criminalisation. If, on the other hand, if two 14 or 15 year olds having sex will ever be prosecuted, then what is the point of it being criminalised at all?
@Roland, we already have laws in place which prohibit teachers and others in a position of trust from having sex with someone under the age of 18. What I have suggested is not a simple blanket reduction, but a reduction to 14 with a “close in age” exception where there is an age difference of more than three years. In your example (15 and 28), it would remain an offence. I also think we need to avoid saying talking about the age of consent as equivalent to other “rights”. We aren’t granted the “right” to have sex by the state. It is entirely our choice, and should only be prohibited when there is harm caused.
@Caractacus, it is not often I quote Eleanor Laing MP, but when talking about reducing the age of consent for gay men to 16, she said “Young people need protection, but young people are not protected by being made into criminals. I entirely agree with her. We should continue to criminalise those who exploit, abuse or coerce young people, but not the young people themselves, which is what the current law does, even if it seldom enforced.
@Stuart Mitchell, I agree that whatever age if chosen will be, to an extent, arbitrary. However I believe it ties in with our age of criminal responsibility. Currently, under UK law, you cannot be convicted of a crime if you are under 10. In most countries, however, the age of criminal responsibility is 14, and the UN Committee on the Rights of the Child has called for it to be at least 12. That is why I chose the ages of 12 and 14 as, below those ages, the child should never be found guilty of committing any crime. That leaves the period between the age of 12/14 and the current age of consent, 16. I didn’t want to take up too much space in the article by explaining the ages I chose, but you’ve given me the opportunity! I haven’t characterised the application of the law as blunt, but criminal law generally as a tool for enforcing behaviour and attitudes. If we have an action which is a criminal offence (such as a 14 and 15 year old having sex), but never enforce that law, then what is the point of it being criminal? As I said, if a criminal law is not respected, obeyed or enforced, then it is obsolete and should be repealed, particularly if there is even the slightest chance it might stop young people from accessing sexual health services. But it is the principle that is the main thing for me.
@Dave G Fawcett, I disagree that sex is a “right” that the state grants to people. We have a right to a sexual life as soon as we decide to start having sex. The only time the state should step in is when there is harm caused. I also disagree that there is a single age when all of these things become appropriate. Most of us don’t seem to be offended if 14/15 year olds are having sex, but we wouldn’t want them joining the army or buying houses.
@Peter Tyzak, you say “When two young people follow their instincts that’s fine, it’s about mutual consent” but then also say the age of consent should be 16. I don’t think you can logically argue that a particular action is “fine” but should also constitute a criminal offence”. If you think it’s fine for young people to have sex (provided they are of a similar age), then it should be legal, not illegal.
@mpg, What I have suggested is exactly the system you’ve put forward in your own comment! Under the system I propose, where the parties are under 16 but close in age (no more than three years apart), they won’t be prosecuted as it will no longer be criminal. Where the age gap is greater than three years, it will continue to be an offence, and our sentencing guidelines already make clear that the larger the age gap, the greater the sentence. So I’m glad you agree with me!
“The sentence about the need to ensure that young people have access to sexual health services, whatever their age, comes from Ashton’s comments that that “Because we are so confused about this and we have kept the age of consent at 16, the 15-year-olds don’t have clear routes to getting some support””
I’d like to see some evidence of that, to be honest. Seeing some might actually convince me that a ‘between-consenting-more-or-less-fifteen-year-olds’ exception is worth explicitly codifying into the law.
@Richard
>”We do have a number of laws already in place which protect young people from grooming and from people abusing a position of trust”
No laws don’t protect, they provide a dis-incentive to people to perform certain actions and a means of punishment/redress if caught.
I think in your argument, you are focusing too much on a selective headline result from the report you cite which focuses on a minority of young teenagers, without considering the reports other findings, and the potential implications of your suggestion with respect to these other findings, such as the (reported) level of pre-16 sexual activity among Muslim and Hindu women, and pregnancy and abortion rates – for which the report provides no data cover the under 16’s… Which then brings us on society’s attitudes to women…
@Roland, I think that your first point is a matter of semantics. If the criminal laws we have put people off grooming children and sexually abusing them, then they are helping to protect children. We will never be able to eradicate such practices completely, but enforcement of criminal law is a key component.
I have to admit that I am unaware of other reports which look specifically at sexual activity under the age of 16 amongst particular religions. The report I cited indicates that the proportion of Muslim and Hindu women who have sex before 16 is much lower than other religions, but I don’t see how this affects my argument. I suspect that the lower proportion reflects the greater impact that religion has upon their sexual decisions, rather than what the age of consent is, and so a reduction is unlikely to make any difference.
Pregnancy and abortion are interesting issues to consider. The question is whether a reduction in the age of consent would have any impact upon the number of teenage pregnancies or abortions. I don’t believe it would. In fact, one of my key arguments in the post is that the age of consent has little impact upon when people start to have sex. As the NatSal Survey from 2000 showed, nearly a third of men aged 16-19 and a quarter of women 16-19 had lost their virginity under the age of 16. If you include other forms of sexual activity, the figures are likely to be even higher. So the law is already ignored, and not a single person responding to my article has suggested that people under 16 should be criminalised for having sex under the age of 16. This supports the argument I made that where the criminal law is not respected, obeyed or enforced, the law should be reformed.
@Richard
i was referring to the Report you referenced, to me the fact that the Report highlights (in the summary) Hindi and Muslim women, would seem to indicate that something is potentially happening in our society which is influencing the attitudes of young teenagers and hence leading us to question whether this a beneficial or not and hence whether we should encourage or provide disincentives.
Yes the criminal law does seem to be slightly inappropriate, but what other forms of law do we have that can be used to apply moral pressure in our increasingly non-secular society?
@Richard Wingfield
Still not seeing any evidence that the law as it stands is having any negative effects beyond the ideology of the thing. So far, just speculation from adults about whether kids might feel a certain way. Whilst I agree that the law is not enforced under certain circumstances, I’m not sure that this implies that the law is broken enough to merit ‘fixing’ it by effectively blindly whitelisting by age.
As a new father this seems more like something a parent should be trying to help their child with once they decide to become sexually active. I mean my parents couldn’t stop me and I doubt I’ll be able to stop my own daughter when the time comes. It seems to make more sense for me and her mother to take an active role in informing her about the resources available to lower risks of the act.
I disagree that the age lowering will have a positive impact on teenagers, especially girls. Child can not legally consent for almost anything, but will be able legally consent to the sex. For me it makes no sense.