Consent at 16: protection or persecution

Young people under 16 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.
I do not advocate teenagers having sex before the age of 16.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

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 under-age 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.

Our society should, surely, uphold the sexual human rights of all young people, not just the over-16s. 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. It’s 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.

An age of consent of 16 is unfair and unrealistic. It is a head-in-the-sand attitude that 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.

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 later age than their British counterparts. Most significantly, the Dutch rate of pregnancies and abortions in girls under 16 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.

Contrary to the claim that Britain’s tough consent laws exist to protect youngsters against exploitation by adults, the very young also get penalised.

In 1996, I undertook a major research project, examining Home Office statistics for 1994 (which was, at the time, the latest year for which official figures were available). My research into the prosecution of young gay men for consenting sex showed that in England and Wales during 1994 a total of 84 males aged 10-17 were arrested and cautioned for the predominantly consensual and gay offences of buggery, indecency between males, soliciting, and indecency with a person under 14 (ten of the 32 cautioned for the latter offence were themselves below the age of 14). For the same four offences, a further 38 males under the age of 18 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 10-13 and five aged 14-17 – were cautioned for ‘indecent assault on a female’ in 1994. 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 is 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 16 (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.

An example of this type of prosecution is the case of Donna Allen, who was sentenced to two years jail in 1995. At the age of 18, she’d had sex with her 13 year old girlfriend. It was stated 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, the sentence was reduced to 15 months (which still seems hard to justify for a consensual affair).

Likewise, not all ‘assaults’ on men involve ‘victims’. In 1994, 54 people under 18 were prosecuted for ‘indecent assault on a male’, with 33 being convicted. Another 108 people aged 10-17 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 16.

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 13). 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 can also persecute. 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’d had sex with each other, and said they’d 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 – 14 is now the average age of first sexual experience – 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’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 is 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.

Perhaps 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. If this sex play is consensual, and no one is hurt or complains, is a prosecution in the public interest? Is it in the child’s interest?

Having a maximum three-year age gap would give the under-aged 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 on the status quo, 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 1996 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, arguably, be contingent on, and commensurate with, harm being done. In other words, if no harm has been inflicted, as in the apparent 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 any reduction in the age of consent from 16 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 is 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 is why 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.

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. Starting long before they begin sexual experimentation, young people need accurate, non-judgemental information about heterosexuality, homosexuality and bisexuality, plus practical advice on how to deal with sex pests, negotiate safer sex and sustain fulfilling relationships based on mutual consent and respect.

One obstacle to earlier, more effective sex education is the current age of consent. 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 by the police, or sued by disgruntled parents, for aiding and abetting unlawful sexual acts. Remember the Birmingham teacher who was, a few years ago, prosecuted on this point? No wonder other teachers are nervous, and feel reluctant to give upfront advice to under-age pupils.

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.

* Convictions are greater than prosecutions because some guilty verdicts in 1994 arose from prosecutions which began in the preceding year.

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).

Criminal Justice Matters, No.35, Spring 1999

An earlier, short version was published as “Sweet fourteen”- New Statesman and Society, 23 June 1995