sex and the law: how does it affect you?

by John Illman and Rachel Newcombe

What is the age of consent? How old do you have to be before you can legally go into a sex shop and buy a vibrator?

© Getty

When it comes to sex and the law, knowing what you can and can't do, and when, is crucial. With recent trends such as the increased use of the Internet, the rising number of sex shops and changing attitudes towards pornography, the need for a modernized law of sexual behaviour became more pressing. In 2003 the Government updated the Sexual Offences Act to reflect current, rather than Victorian, attitudes to sex. The new Act focuses on aspects previously overlooked by the law and introduces new changes that aim to protect the vulnerable and iron out any gender differences.

This is a guide to many of the major issues and offers an insight into how sex is viewed in the eyes of the law:

1. age of consent  (including advice on teacher-pupil relationships)
2. medical confidentiality and the under-16s
3. rape and indecent assault
4. indecent exposure or 'flashing'
5. 'peeping toms'
6. illicit sex within the family
7. pornography
8. cybersex
9. sadomasochism
10. necrophilia
11. discrimination and the law

age of consent

The law sets out to safeguard children until they are old enough to decide for themselves about sex. It is a criminal offence to have sex with anyone below the so-called 'age of sexual consent'. But the law about consent has some inconsistencies and anomalies and underlines the general problems that bedevil much legislation about sexual behaviour – the most personal and contentious area of criminal law. The law has to protect the freedom of the individual while protecting him or her from harm or abuse.

In England and Wales the same laws apply to heterosexual and homosexual activity and offences can be committed by anyone, male or female, over the age of 10, which is the age of criminal responsibility. It is an offence to intentionally engage in sexual touching with a young person aged 13-15. 'Touching' covers all physical contact, including penetration and touching with any part of the body, with anything else and through anything, for example, through clothing. A person aged 18 or over is liable to up to 14 years imprisonment for this offence. A person under the age of 18 is liable to up to 5 years imprisonment, although they may claim in their defence that they believed the young person to be over 16.

Intentional sexual touching of a young person under 13 is an absolute offence, with no chance of defence that it was believed the person was over 16. Sexual touching which involves penetration of the vagina, anus or mouth by the penis or penetration of the vagina or anus with a part of the body or any object is punishable by up to life imprisonment. Sexual touching not involving penetration is punishable by up to 14 years imprisonment.

In Scotland, it is illegal for men and boys over the age of 8 – the age of criminal responsibility – to have intercourse with a young woman aged 13-15. However, this is qualified by the defence that the man or boy believes himself to be validly married to the young woman (even if this is not the case), with a maximum penalty of two years imprisonment. There is no defence for a man or boy aged 8 or over to have intercourse with a girl aged 12 or under with a maximum penalty of life imprisonment. Scottish common law treats sexual intercourse with a girl under the age of 12 as rape whether or not it was consensual.

A girl or woman could be charged with indecent assault if she had sexual intercourse with a boy under 14 as could anyone who took part in a sexual act short of intercourse with a girl under 12 or boy under 14. This is because Scots common law regards anyone under the age of puberty (legally defined as 12 for a girl and 14 for a boy) as unable to give consent. In addition, it is a statutory offence for anyone to behave in a lewd, indecent and libidinous manner towards girls under 16 regardless of consent.

Homosexual acts between men are legal provided that they are both 16 or over and the act takes place in private. There is no statutory defence which can be claimed but the court would assess the background to each individual case. The maximum penalty is two years imprisonment.

In Northern Ireland, meanwhile, it is an offence for a man or boy aged 10 or over to have intercourse with a young woman aged 14-16. There is no defence that the man believed her to be 17 or over, whatever her age, with a maximum penalty of two years imprisonment. It is an absolute offence for a man to have intercourse with a girl aged 13 or under with a maximum penalty is life imprisonment. It is an offence for anyone to commit an act of gross indecency with a child under the age of 17, so a woman who had sexual intercourse with a boy under 17 could be prosecuted for this offence as could anyone who took part in a sexual activity that did not include intercourse.

Homosexual acts between men are legal provided that they are both 17 or over and the act takes place in private. There is no statutory defence which can be claimed but the court would assess the background to each individual case, with a maximum penalty of two years imprisonment.

A quarter of women and nearly a third of men have sex under the age of 16, but the average age for first intercourse is 16 for both sexes, according to the 2001 National Survey of Sexual Attitudes and Lifestyles. Thus, many couples under 16 have illegal sexual relationships, when either or both partners are below the age of consent, sometimes without even realising they're breaking the law. The police rarely take action, except in special circumstances when, for example, a parent or carer objects to the relationship because of 'moral danger'. People under 16 may be taken into care if they are 'promiscuous' or involved in prostitution.

Abuse of trust

The Sexual Offences Act 2003 also sets out an offence of 'abuse of trust'. The Act's provisions mean that, subject to a number of limited defences, it is a criminal offence for a person in a position of trust (for example, a carer, teacher or social worker) to engage in any sexual activity with a person under the age of 18, even if the basis for their relationship is consensual.

So in the case in Hollyoaks of Becca sleeping with her 16-year-old pupil Justin, Becca is breaking the law even though Justin is over the age of consent. Becca could face a prison sentence and be prevented from teaching again. She could also be placed on the sexual offenders' register.

The main purpose of this law is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives. See the resources listed in help and info below for more about what constitutes a 'relationship of trust'. This Age of Consent Q&A in our Adult at 14 site has more information about why the abuse of trust provision was introduced and what it could mean for someone like Becca.

medical confidentiality and the under-16s

Anyone over the age of 16 has a right to confidential medical treatment – including family planning advice and treatment. But confidentiality for the under 16s has been a controversial issue for many years. In 1974 the then Department of Health and Social Security (DHSS) advised that doctors could provide contraceptive advice to girls under 16 without telling their parents, and that they should always seek the girl's consent to inform the parents.

Challenging this ruling in the courts, mother of ten Mrs Victoria Gillick sought assurance that she would be consulted if a daughter of hers under the age of 16 sought contraceptive advice. After a series of judgements and appeals, the House of Lords ruled in 1985 that the DHSS 'guidance was not unlawful'. Hence doctors could give contraceptive advice and even prescribe contraceptives for under-16s without telling their parents – even though, if an under-16-year-old did have sex, theoretically it would be against the law. This anomalous solution was seen as the best way to try to limit the number of underage teen pregnancies.

In 1986, Lord Fraser produced guidelines for treating young people. These are still in use today and state that doctors and other health professionals may provide contraceptive advice and treatment provided that:

• the young person understands the advice and has sufficient maturity to understand what is involved
• the doctor could not persuade the young person to inform their parents, nor to allow the doctor to inform them
• the young person would be very likely to begin, or continue having sexual intercourse with or without contraceptive treatment
• without contraceptive advice or treatment, the young person's physical or mental health would suffer
• it would be in the young person's best interest to give such advice or treatment without parental consent.

But John Coleman, author of Sex and Your Teenager: A Parents' Guide, says in his book: 'A doctor who is unwilling to accept a request for confidentiality can refuse to continue with the consultation. This has given rise to an unsatisfactory state of affairs in that a young person has first to establish what the doctor's view about confidentiality is before knowing what she/he can expect. In practice, doctors vary widely in their beliefs about confidentiality so it is not surprising young people are confused'.

Many young people bypass their doctors, rather than risk any kind of confrontation, and seek contraceptive advice from family planning clinics, like the Brook youth advisory service. Brook has a nationwide network of family planning clinics for young people. Its website says: 'Although strictly speaking it's illegal for someone to have sex with a girl under 16, we know that maturity does not suddenly arrive on the 16th birthday, and that many young people are mature enough to make their own decisions about their lives. Things are usually easier for young people if they can discuss their relationships with their parent(s), and parent(s) can be very understanding and supportive. Unfortunately, things are not always like this and Brook believes that it is up to clients to decide whether or not to tell anyone at home about their visit to Brook.'

rape and indecent assault

Rape is the most serious, the most feared and the most debated of all sexual offences. The 1956 Act defines 'rape' as penile penetration of the vagina or anus without consent. The complainant may submit to sex because of force or fear of force; or because he or she cannot give consent because they are unconscious, or too drunk or drugged to do so.

'Indecent assault' falls short of sexual intercourse and can involve:

• 'serious' assault: for example, stripping someone without consent
• cases in which children consent to indecent activity
• cases in which adults obtain sexual pleasure from children – for example, a man may watch boys playing while masturbating; or allow a child to touch his penis outside his trousers without doing anything to stop it
• sexual contact between young people under the age of consent in which both partners may consent to the 'assault'. This is technically illegal, but there are no reported examples of such cases reaching the courts.

These examples may create the impression that, in law, indecent assault is restricted to cases involving children. This is not the case.

Prior to the 2003 Sexual Offences Act, the definition of rape only included penile penetration of the vagina and anus. This meant that other serious penetrative assaults, such as enforced oral sex, were only treated as 'indecent assault'. However, the new act recognises that penetration of the mouth by the penis is serious and it is classed as rape.

Even if the technical/physical act is committed, in the past the law distinguished between rape between two people who didn't know each other, and rape between people who did. It was not until 1991 that The House of Lords case ended the exemption of husbands from rape – since then a man can no longer use marriage as a defence against the charge of raping his wife.

Date rape – sex on a date without consent, sometimes when the woman is drugged or made drunk beforehand – used to be treated by the courts more leniently than rape by a stranger. In May 2002, however, the government announced new legal guidelines to ensure that the courts deal with all rapes in a similar fashion. But the criminal system has some way to go to show that raped women will be treated fairly by the courts. Only 18 per cent of reported rapes result in successful prosecutions – - this statistic deters many women from even telling the police. The Sexual Offences Act 2003 specifically recognises administering a substance with intent, in order to stupefy or overpower a victim to enable sexual activity, yet the maximum penalty is only 10 years, as opposed to a maximum of life imprisonment for rape.

indecent exposure or 'flashing'

'Flashing' (exposure by a man or women of their genitalia in public) tends to be regarded as minor and harmless, but it can have a serious impact and be distressing for unsuspecting members of the public. But there is an important distinction between people who expose themselves for sexual gratification or to frighten others, and:

• streakers and other exhibitionists who strip off in public for fun or to shock
• naturists
• men who expose themselves in public places (though not necessarily within public view) to urinate.

Whilst the law used to be a bit archaic and only specifically mention exposure by men in front of women, it now applies to both men and women. So, it's equally offensive for both men and women to exposure their genitalia through flashing. The act is taken seriously by the law, and could result in a two year sentence.

Follow this link for more information about flashing with details of relevant organisations, websites and further reading.

'peeping toms'

Voyeurism or 'peeping' involves watching people in intimate surroundings - such as bathrooms or changing rooms – without them knowing. For the people unknowingly being spied upon, it's a major intrusion of privacy.

The impact of voyeurism was taken seriously in the latest Sexual Offences Act. Covert observation for the sexual gratification of oneself or others, of another person engaged in activity of an intimate or personal nature and in circumstances where the person being observed has a "reasonable expectation of privacy" is regarded as an offence. If caught, peeping toms face a two year jail sentence.

Under the new law, a peeping tom from Wales, who owned a guest house and secretly filmed his guests whilst they were in the bathroom, was given a three year community rehabilitation order and forced to sign up to a sex offenders programme for five years. He'd been recording hundreds of guests using a studio in his attic for about 20 months before one sharp-eyed guest spotted the tiny camera lens whilst cleaning his teeth.

See our feature on voyeurism to find out more about voyeurs and what you can do if you think you've been the victim of one.

illicit sex within the family

Incest (heterosexual intercourse between two people within a prohibited range of family relationships – see below) is widely regarded as a fundamental breach of trust by one family member against another.

In the case of men, prohibited relationships include those with a:

• granddaughter
• sister
• daughter
• mother.

In the case of women, they include those with a:

• grandson
• brother
• son
• father.

The definition of incest includes non-marital relationship and relationships under what the law calls the 'half-blood' (eg, a half-brother and -sister).

Consent is no defence under the law – whatever the partner's age. It has been argued that brother-sister incest is less culpable than that involving a parent or grandparent, but there are no current plans to change the law substantively. Changes in how children are conceived nowadays – for example, by in vitro fertilisation from an unknown donor – may eventually prompt changes in the laws on incest between two prohibited family members who have absolutely no conscious knowledge they are genetically related.

There is an additional offence of a man or boy inciting a girl under the age of 16, whom he knows to be his granddaughter, daughter, sister or half-sister, to have incestuous intercourse (Criminal Law Act 1977).

A review by the Home Office concluded that the law did not deal adequately with sexual abuse that occurs in families, particularly where there are changing partners and 'informal' relationships – such as couples living together without being married.

So the old offence of incest was replaced with a more modern law that prohibits sexual relations between children under 18 and their blood relations, adoptive parents and siblings, step-parents, foster carers and those in a position of responsibility in the family. The 'position of responsibility' covers people such as a friend of the child's mother, a relative by marriage, such as an uncle, or another adult that lives in the same household.

pornography

Pornography is illegal (under the 1959 Obscene Publications Act) when it is perceived to be obscene. This is different to being 'sexually explicit'. Whether a pornographic article is obscene is something that is decided by a jury. They do this by deciding if it is likely to 'deprave and corrupt'.

So pornography that is not deemed to be 'obscene' is legal in the UK and it is not an offence to look at it on the Internet. It is not an offence to have pornography in your possession, but it is an offence to distribute or publish porn that may 'deprave or corrupt'. It is often possible to trace saved and/or formerly viewed/deleted images on computers. This might be interpreted as being in possession of illegal material.

Deciding what is 'legal' can involve distinguishing 'art' from 'pornography' and provides another example of the problems of reconciling what is socially acceptable to the law. The National Campaign for the Reform of the Obscene Publications Act complains: 'The legal test of obscenity (in the Act) is the notorious 'depraved and corrupt' yardstick. This is the test the authorities apply, though nobody can demonstrate that anybody has ever been depraved or corrupted by a particular obscene article.'

A New Scotland Yard spokesman said: 'We have a wealth of experience in making these decisions'. But the National Campaign claims that police and custom officers simply apply 'their own idiosyncratic and inevitably inconsistent standards' to the decision-making process. In fairness to the police there are no objective criteria to apply to borderline cases beyond the kind of cases they know have already finished with successful prosecutions.

But how reliable is this measure? According to the National Campaign, it is also deeply flawed because an item judged 'obscene' in one court may be found to be 'not obscene' in another.

Child pornography is illegal. This includes downloading pornographic images of children from the Internet – as popstar Garry Glitter (real name Paul Francis Gadd) found to his cost. On 12 November 1999, he was sentenced to four months in prison after pleading guilty to 54 charges of child pornography. Indecent images on his computer came to light when he sent it for repair.

It is an offence for a person to take, make, distribute, publish, show or have in their possession, with intent to show, any indecent photograph of a child.

cybersex

Cybersex – using the net to find new partners or to act out sexual fantasies – may seem innocent enough, but it is associated with pornographic crime. In May 2000, Bournemouth Crown Court heard that a cyber stalker had terrorised a teenager by setting up internet sites to lure strangers to her home. The prosecution at Bournemouth Crown Court said that the websites invited them to rape or abuse her. The girl, who suffered from chronic fatigue syndrome, was inundated with e-mails and several strangers called at her house.

The defendant admitted 25 offences, including sending indecent messages and distributing pornographic pictures of children. Jailing him for seven and a half years, Judge Samuel Wiggs said: 'This was a campaign against an innocent young girl who thought you were a friend. Knowing that she suffered extreme ill health, you sadistically used a computer to get pleasure from her pain, setting up these websites offering unbelievably foul services.'

More recently, a man from Scotland who had cybersex with a 13-year-old girl was jailed for two years and put on the sex offenders' register. He met the girl through an Internet chat room, where his profile said he was 19, and the court believed he was 'grooming' the girl. Although the Internet can be a good way of meeting people, there's always the risk that someone might not be who or what they say they are, as this case highlighted.

sadomasochism

This term is used to describe a wide range of activities in which participants obtain sexual pleasure from suffering and/or inflicting pain. The 'victim' consents to the activity. There is no law as such against sadomasochism, but participants are liable to prosecution for assault, for occasioning actual bodily harm or for unlawful wounding. As the law currently stands, 'consent' is no defence.

A 'right-minded person' may argue that this is as it should be, but should we as a society distinguish 'bodily harm' resulting from sadomasochism from that caused by say, tattooing, ear-piercing, boxing or ritual male circumcision?

In a dissertation for the University of Bristol, published on the Internet in September 2001, John Deft points out that in one case, a man was convicted of assault causing actual bodily harm after branding his initials on his wife's buttocks (at her request) with a red hot knife. Allowing his appeal, the Court of Appeal ruled that the prosecution had served no useful purpose. Sexual activity between husband and wife in the privacy of the matrimonial home, it decided, was not a matter for criminal investigation. There was no evidence that the branding had been more dangerous or painful than tattooing, and the case was easily distinguishable from those in which real torture had been inflicted.

But in another case, the Court of Appeal agreed that the degree of actual and potential harm was such as to make it a 'criminal' case. The 'victim' (the defendant's partner) had fully consented and had not subsequently complained. But she had sustained injuries that could have been fatal if the activities had not stopped when they did.

necrophilia

Necrophilia is the term used to describe having sex with dead people. Although it's a rare occurrence and not something that most people would even consider, until the new act it was strangely not regarded as a crime. That has all changed now, though, and anyone found to have had sex with a dead person faces up to two years imprisonment.

discrimination and the law

Previous legislation regarded sexual offences in a gender specific way, which was widely criticised. But the updated Sexual Offences Act has been modernised and is now much more gender neutral. Homosexual and heterosexual offences are now treated on an equal level, whereas they were previously dealt with in different ways.

the law and sex shops

Finally, to end with the question with which we began, how old do you have to be before you can legally go into a sex shop and buy, say, a vibrator or a sex toy? Answer: 18.

existing penalties for sex offences

help and info

Channel 4 is not responsible for the content of third party sites.

organisations

Brook
Ask Brook Helpline: 0800 0185 023 (Mon-Fri 9am-5pm)
Website: www.brook.org.uk
Provides free and confidential contraceptive advice for anyone under 25. Provides emergency contraception, pregnancy testing and counselling on any sex and relationship problem. The website also has details of Brook's secure email service, text message service and details on how to get in touch with your local Brook centre.

ChildLine
Freepost 1111
London N1 0BR
Tel: 0800 11 11 (Freephone 24 hours)
Website: www.childline.org.uk
UK's free, 24-hour helpline for children and young people in danger and distress. Trained volunteer counsellors provide comfort, advice and protection. Lines can be busy so please try again if you don't get through the first time.

Children's Legal Centre
University of Essex
Wivenhoe Park
Colchester CO4 3SQ
Child Law Advice line: 0845 120 2948 (Mon-Fri 9am-5pm)
Young People Freephone: 0800 783 2187
Tel: 01206 872 466 (Mon-Fri 9am-5pm)
E-mail: clc@essex.ac.uk
Website: www.childrenslegalcentre.com
Confidential legal advice and information service covering all aspects of law and policy affecting children and young people. The service is open to children, young people and anyone with concerns about them.

Community Legal Advice
Helpline: 0845 345 4 345
Website: www.clsdirect.org.uk
CLS Direct provides free information for people in England and Wales on a range of common legal issues. You can read free legal information leaflets on the website or search for a high-quality local legal adviser or solicitor. If you live in Scotland please visit the Scottish Legal Aid Board (www.slab.org.uk) for further help. In Northern Ireland please visit the Northern Ireland Legal Services Commission (www.nilsc.org.uk).

NSPCC
Child Protection Helpline: 0808 800 5000 (24 hours)
Asian Child Protection Helpline: 0800 096 7719 (Mon-Fri 11am-7pm) (English speaking line – Asian languages are also available)
Textphone: 0800 056 0566
E-mail: help@nspcc.org.uk
Website: www.nspcc.org.uk
The NSPCC Child Protection Helpline is there for anyone concerned about a child at risk of abuse, including children themselves. The helpline is also available for people who are concerned about their own behaviour towards children. Provides counselling, information and advice. If lines are busy please persist. Information is also available on their website.

Victim Support
Victim Supportline: 0845 30 30 900 (Mon-Fri 9am-9pm; Sat-Sun 9am-7pm, Bank Holidays 9am-5pm)
E-mail: supportline@victimsupport.org.uk
Website: www.victimsupport.org
Confidential support and advice to anyone affected by a crime, no matter how long ago it happened. The informative website features facts and guidance on the help available for victims of crime, and you can find details of your local branch. The minicom is currently unavailable (since May 2008) but a new number will be up soon so keep checking the website for details.

websites

Association of Child Abuse Lawyers
www.childabuselawyers.com
Non-profit organisation which provides practical support for lawyers and other professionals working for adults & children who have been abused.

Broken Spirits Network
www.brokenspirits.com
US based online community and support group that focuses on aiding both current and past victims of child abuse, sexual abuse and domestic violence.

Guidance on allegations of abuse against staff in schools
www.lge.gov.uk/lge/core/page.do?pageId=119361
Guidance in PDF format on staff facing an allegation of abuse and the conduct of education staff working with young people.

Having an affair with your teacher
www.bbc.co.uk/teens/girls/sexloveandlife/atozofyou/lovefiles/teacher2.shtml
BBC teen file offering advice to pupils who are having, or thinking of having, an affair with a teacher.

legalappeal.co.uk
www.legalappeal.co.uk
Provides pre-trial preparation and appeals for those faced with a false accusation of a sexual offence. The website includes useful information including tips on giving evidence in court and what to do if arrested.

Opinion: A prisoner of sexual double standards
www.timesonline.co.uk/article/ ..
Sunday Times article from 2005 examining whether we were guilty of double standards in sentencing a 32-year-old teacher to 15 months in jail for sleeping with a 14-year-old boy who was not one of her pupils.

Rape Crisis
www.rapecrisis.co.uk
Contains contact details for Rape Crisis Centres where you can go for advice, information and counselling. Also contains details of local helpline numbers as well as information about rape and sexual violence, court procedures and the law, and myths and facts about rape.

Sexual Offences Act 2003
www.opsi.gov.uk/acts/acts2003/20030042.htm
Read an online version of the 2003 Sexual Offences Act.

Teachernet: Abuse of a position of trust
www.teachernet.gov.uk/wholeschool/familyandcommunity/...
Sets out the details of the offence of abuse of a position of trust, as described in the Sexual Offences Act 2003.

Working within the Sexual Offences Act 2003
www.teachernet.gov.uk/_doc/6674/care-workers.pdf
PDF leaflet setting out the main laws affecting those who work with children and those who provide care services to people with mental disorders.

reading

	Sex and Your Teenager by John Coleman (John Wiley, 2001) Offers parents tips on how to discuss sex with their teenagers and advice on a range of issues from puberty through to coping with relationships, contraception and HIV. Get this book
	Sex Crime: Sex Offending and Society by Terry Thomas (Willan Publishing, 2005) This fully revised second edition provides an account of the nature and extent of sex crime and offending in contemporary Britain, and the policies and legislative actions taken to combat this. Get this book
	Blackstone's Guide to the Sexual Offences Act by Kim Stevenson, Anne Davies and Michael Gunn (OUP, 2004) Explains the 2003 Act in a simple and accessible manner, and includes a copy of the Act itself. Get this book

(June 2002, updated August 2008)