Consent at 14
OutRage! advocates an age of consent of 14 for everyone, both gay and straight. PETER TATCHELL argues that young people have a right to make their own sexual choices without being victimised by the law.
Note: My articles urging an age of consent of 14 are motivated solely by a desire to reduce the criminalisation of under-16s who have consenting relationships with other young people of similar ages.
I do not support adults having sex with children.
But if they do have sex before their 16th birthday, they should not be arrested, given a criminal record and put on the sex offenders register.
Perhaps the ideal solution would be that the age of consent remains at 16 but that sexual behaviour involving young people under 16 should not be criminalised, providing there is informed consent, no one is harmed and there is no more than two or three years difference in their ages. This would end the criminalisation of similar-aged young people, while protecting the under-16s against sexual abuse by those much older. I hope this reassures you - Peter Tatchell
It's all very well for the lesbian and gay community to call for an equal age of consent of 16, but what about the sexual rights of those who are younger?
A third of lesbians and two-thirds of gay men have their first same-sex experience before the age of 16, according to research by Lesbian London magazine (1992) and Project Sigma (1990).
These under-age lesbians and gays, and their partners, are treated as criminals by the law. Consenting lesbian sex with a girl under 16 is punishable by up to 10 years imprisonment. The maximum sentence for consensual gay male sex with a boy under 16 is ten years for touching, kissing, sucking or wanking, and life imprisonment for anal sex. These 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. This legal barbarism doesn't protect young people; it victimises them.
Our community should be defending the human rights of all lesbians and gays, not just the over-16s. Yet, desperate for respectability, and terrified of being accused of condoning child sex abuse, most gay organisations refuse to support the right of the people under l6 to make their own decision about when they are ready for sex.
OutRage! recently broke ranks with the conservative gay consensus, arguing that youths below the age of l6 should be free to enjoy sexual relationships without being penalised by the law.
The National Survey of Sexual Attitudes and Lifestyles, which interviewed nearly 19,000 men and women in 1990-91, is the most comprehensive sex research ever conducted in Britain. It found that half of those questioned - which included both gay and straight - had their first sexual experience (not necessarily intercourse) before the age of 16, mostly after the age of l4.
This evidence spurred OutRage! to launch a new campaign "to reduce the age of consent to l4 for everyone, both gay and straight", arguing that "l4 is more realistic than 16, and much fairer".
Already, 20 European countries have ages of consent lower than l6. The minimum age is effectively l2 in the Netherlands, Spain, Portugal and Malta. It's 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.
The introduction of these comparatively low ages of consent has not increased the sexual abuse of young people. They have adequate protection through the laws against rape and indecent assault.
In the Netherlands, freer and franker attitudes towards teenage sex, together with a strong emphasis on the right of young people to control their own bodies, has led to greater sexual wisdom and responsibility. Although Dutch youths are legally allowed to have sex from the age of 12, on average they choose to have their first sexual experience at a slightly later age than their British counterparts. Most significantly, the Dutch rate of pregnancies and abortions in girls under l6 is less than one-seventh of the rate in Britain. This suggests that empowering young people with legal rights and sexual information is the best way to protect them.
Lowering the age of consent in Britain to l4 would cut dramatically the current criminalisation of young people involved in consenting sex.
Contrary to the official claim that the consent laws exist to protect youngsters against exploitation by adults, the very young also get penalised.
My new research shows that in England and Wales during l994 a total of 84 males aged lO-17 were arrested and cautioned for the predominantly consensual and gay offences of buggery, indecency between males, soliciting, and indecency with a person under l4 (ten of the 32 cautioned for the latter offence were themselves below the age of l4). For the same four offences, a further 38 males under the age of l8 were prosecuted, 39 convicted, and six given custodial sentences.*
Every year, a small number of lesbians also fall foul of law. Twelve women, seven aged lO-l3 and five aged l4-l7, were cautioned for 'indecent assault on a female' in l994. An additional 27 women were prosecuted (four aged-14-17), and three ended up in jail.
Although most of the women charged with indecent assault were probably guilty of coercive sex, it's likely that some were involved in consensual lesbian relations with partners below the legal minimum age of 16. The charge of 'indecent assault' arises because the law states that a person under l6 (whether female or male) is incapable of giving their consent. Any sexual act, even when both parties freely participate, is therefore deemed to be an assault.
In a recent example of this type of prosecution, Donna Allen was imprisoned for two years. At the age of 18, she'd had sex with her 13 year old her girlfriend. It was accepted in court that the young girl was a willing party to the sexual activities, which occurred in the context of a year-long relationship. On appeal last November, the sentence was reduced to l5 months.
Likewise, not all 'assaults' on men involve 'victims'. In 1994, 54 people under l8 were prosecuted for 'indecent assault on a male', with 33 being convicted. Another 108 people aged lO-17 were cautioned for this offence. As with 'indecent assault on a female', a significant number of those arrested were probably engaged in victimless behaviour with youths under l6.
Even more clear-cut, 496 heterosexual men were cautioned in 1994 for the consensual offence of 'unlawful sexual intercourse' with a girl under 16 (but over l3). While supporters of this law say it is solely concerned with protecting young girls against the predatory advances of much older men, 77.4 per cent of those cautioned were below the age of 21, and only 4.4 per cent were over the age of 30. For this offence without victims, 202 males were prosecuted and 205 were convicted.* Sixty were imprisoned, including four under-21s.
Of the men found guilty, 16 were aged 14-17, and 42 were between 18 and 20 (14-20 year olds thus comprised more than a quarter of all convictions). Only 22 of those successfully prosecuted were aged 40-plus (slightly more than 10 per cent), which demolishes the myth that this law is only ever invoked against the stereotypical 'dirty old man'.
As these prosecutions indicate, the law is very confused and contradictory. It may sometimes protect, but it also often persecutes. 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 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'd had sex with each other, and said they'd consented, the courts would have ruled that they were too young to understand what's involved in a sexual relationship.
Since children can be held responsible for criminal behaviour from the age of ten, it's surely illogical for the legal system to say that people below 16 are unable to consent to sex.
The law needs to be consistent. Reducing the age of consent to 14 would begin to tackle this anomaly, removing the threat of criminalisation from the vast majority of sexually-active young people. Nevertheless, like any minimum age, it is arbitrary and fails to acknowledge that different people mature sexually at different ages. A few are ready for sex at l2; others not until they're 20. Having a single, inflexible age of consent doesn't take into account these differences. It dogmatically imposes a limit, regardless of individual circumstances.
It's obviously absurd the way the present law penalises a person just over the minimum age who has sex with someone just below that age, even if there are only a few weeks difference in their birth dates.
For this reason, OutRage! is proposing an element of flexibility in the age of consent: "sex involving young people under l4 should not be prosecuted, providing both partners consent and there is no more than three years difference in their ages". A mutually agreed relationship between a l2 year old and a 15 year old, for example, would not result in legal action. Flexibility in the age of consent already exists, to varying degrees, in German, Swiss and Israeli law.
A 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. If this sex play is consensual, and no one is hurt or complains, there should be no prosecution.
Having a maximum three-year age gap gives the under-14s 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.
Although an improvement, even this three-year flexibility is a bit arbitrary. What about consenting relations between a 13 year old and an 18 year old, as in the recent case of 'child bride' Sarah Cook and her Turkish 'husband' Musa Komeagae? 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 be contingent on, and commensurate with, harm being done. In other words, if no harm has been inflicted, as in the case of Sarah and Musa, punishment is inappropriate and the courts should, at most, impose a counselling order to ensure that the couple are advised about contraception and safer sex.
Compelling though these arguments are, some people still feel anxious that a reduction in the age of consent to 14 might expose young people to abuse.
Paradoxically, it is the present age limit of 16 that contributes to the risk of abuse by reinforcing the idea that young people under 16 have no sexual rights. When the legal system says that youths are not allowed to consent to sex prior to their sixteenth birthday, it's effectively denying them the right to control their own bodies. This sexual disempowerment of young people plays into the hands of adults who want to abuse them.
Guilt and shame about sex also increase the likelihood of molestation by encouraging the furtiveness and secrecy on which abuse thrives. Youngsters who see sex as dirty and wrong are often reluctant to report sexual interference. This suggests that one of the best ways to help protect young people against unwanted sexual advances is by promoting sex-affirmative attitudes which challenge the idea that sex is something sordid that should be kept hidden, and by empowering teenagers to stand up for their sexual rights. Sexually informed and confident young people are more likely to resist sexual exploitation, and report abuse if it occurs, than those who are sexually ignorant and ashamed.
That's why OutRage! wants the lowering of the age of consent backed up with "candid, compulsory sex education in all schools, from primary classes onwards".
Starting sex education in secondary school is too late. By then, some teenagers are already having sex and are at risk of pregnancy and HIV. Long before they begin sexual experimentation, young people need accurate, non-judgmental information about heterosexuality, homosexuality and bisexuality, plus practical advice on how to deal with sex pests, negotiate safer sex and sustain fulfilling relationships.
One obstacle to earlier, more effective sex education is the current ages of consent (l6 for heterosexuals and lesbians and l8 for gay men). Most schools fail to provide sufficiently explicit information about contraception and HIV prevention to under-age pupils. This is partly because they fear being prosecuted, or sued by disgruntled parents, for aiding and abetting unlawful sexual acts. The present ages of consent are thus putting young people's lives at risk.
They're also impeding the provision of supportive information to lesbian and gay pupils, which contributes to their sense of isolation and worthlessness, sometimes resulting in severe depression and even suicide. Research by the Health Education Authority in 199l found that over 80 per cent of young people received no information at school about homosexuality. The 1993 Stonewall survey revealed that only 2.5 per cent of young gay men at school since 1987 received any advice about gay safer sex. A reduced age of consent, together with the repeal of Section 28, would remove the legal barriers to remedying these problems.
It's time the gay community acknowledged the flaws of the current campaign for equality at l6: it ignores the rights and welfare of younger lesbians and gays, and it conforms to straight moral dictates of when young people are entitled to have sex. Demanding consent at 14, in contrast, affirms the sexual rights of youth. It's queers setting the agenda, instead of heteros calling the shots. Moreover, while the 16 campaign has been marginalised as a minority 'gay issue', arguing for consent at 14 for both gay and straight mainstreams the age of consent as a majority issue for people of all sexualities.
* Convictions are greater than prosecutions because some guilty verdicts in 1994 arose from prosecutions which began in the preceding year.
Published as "Is Fourteen Too Young For Sex?" - Gay Times June 1996.
See also "Equality is not enough"- Rouge Issue 20, Summer 1995.
Peter Tatchell's latest book is "We Don't Want To March Straight - Masculinity, Queers & The Military" (Cassell, £4.99).
© Copyright Peter Tatchell, 1996. All rights reserved.
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