AGE OF REASON

by Dan Lee

the law as it stands

The age of consent in the UK is currently 16. So, 17-year-old Ben would be breaking the law if he had sex with 15-year-old Siobhan, even with her consent. Similarly, gay couple Jay, 16, and Mark, 14, are breaking the law as Mark is under age. When your hormones are raging, knowing what the age of consent is may not seem like a top priority. But to stay on the right side of the law, it's something that should be kept in mind.

the sexual offences bill

Since the 2003 Sexual Offences Bill became law, all sexual acts – not just penetrative sex – became a criminal offence if at least one of the people involved, male or female, is under 16.

One of the main concerns of the policymakers was protecting young people from abuse by people older than themselves. Whilst this is good in theory, some people believe it complicates the position with regard to consent even more. In extreme cases, it could even have the effect of criminalizing people under 16 for consensual sexual acts with other people of the same age. The Bill has reawakened the debate about the age of consent in this country. Rather than tightening the law, should we in fact have loosened it?

the debate

Supporters of lowering the age of consent argue that teenagers are already having sexual experiences long before the legal age of consent and the law needs to recognise this to be able to give them proper advice and support to prevent diseases, unwanted pregnancies and abuse. If 14-year-olds are not legally allowed to have sex, it is very difficult to discuss it with them at school, for example.

According to the organisations such as the International Child and Youth Care Network and campaigners such as Peter Tatchell, writing in the Guardian newspaper, "an age of consent of 16 criminalises more than half the teenage population. This is an odd way of protecting them. Consent at 14, for both gay and straight relationships, would be fairer and more realistic." Their views are informed by surveys which have revealed that between 20 and 30 per cent of teens have engaged in sexual intercourse before the age of 16, and that the average age of first sexual experience (this refers to everything from heavy petting to mutual masturbation, oral sex and intercourse) is now 14 for girls and 13 for boys.

However, opponents of change believe that lowering the age of sexual consent may encourage young people to have sex earlier and place them at greater risk of diseases, unwanted pregnancies and abuse.

Brook, who provide free and confidential sexual health advice and services for young people in the UK, didn't advocate a reduction in the age of consent, stating in their literature, 'This would be a significant change which would require careful thought and consultation with both young people and other stakeholders (especially as a 1999 NOP opinion survey on the age of consent for Brook and Stonewall implies that the majority of young people do not want the age of consent to be lowered or removed).'

altered realities

An age of responsibility must take into account social realities, or it will be impossible to enforce and may have unintended consequences. The previous law on the age of consent was born in the anxieties of the 1860s, when the age of consent stood at 12 (see Age of Consent Timeline). Campaigners such as Josephine Butler and Barbara Bodichon fought to stop young girls being sold to brothels and succeeded in getting Parliament to raise the age to 13 in 1875. Later campaigners, such as the Salvation Army's William Stead and Bramwell Booth succeeded in getting Parliament to raise the age of consent to 16 in 1885 after Stead published in the Pall Mall Gazette an account of how easy it was to buy a 13-year-old girl for prostitution. But does the change in law keep up with modern times?

The physical development of children and young adults is changing. The first stages of the pubertal process are happening earlier, according to recent studies – changes that are usually attributed to better nutrition. The onset of puberty in the UK has dropped from an average 16.5 years for females and 17.5 for males in 1840, to 11.9 and 13.1 years respectively in the 1990s.

Changes in anatomy, however, do not necessarily equate to changes in the age of responsibility, begging the question: at what age does a child become an adult? Any minimum age of consent is bound to be chosen to some extent arbitrarily and based on the age at which reasonable people would agree that most children gain enough sense of responsibility to make adult decisions (although this makes the different ages for voting and drinking seem even more confused). Elsewhere in the world, the age of consent varies between the ages of 12 and 21 (see Age of Consent Map).

moral panic

There is a moral panic surrounding sexuality. And moral panics almost always lead people – campaigners for change and supporters of the status quo – to think that changing the law will automatically change the behaviour of the whole population. There could be no better example of this view than the speech of rightwing MP Frederick Macquisten when he was arguing in 1921 for lesbian acts to be outlawed.

"These moral weaknesses date back to the very origin of history, and when they grow and become prevalent in any nation or in any country, it is the beginning of the nation's downfall. The falling away of feminine morality was to a large extent the cause of the destruction of the early Grecian civilisation, and still more the cause of the downfall of the Roman Empire."

Contrary to what Macquisten may have claimed, recognising the personal situation of some of the population does not mean that the same behaviour will be forced on the rest of the population. Today's Prime Minister Tony Blair made his view on this clear during the debates over the relatively recent reduction in the gay age of consent to the same age as straight sex:

"By supporting equality, no one is advocating or urging gay sex at 16 any more that those who would maintain the age of consent for heterosexual sex advocate that girls or boys of 16 should have sex."

mixed messages

Some critics, however, argue that today's culture is becoming increasingly sex obsessed – through adverts, TV and provocative clothes – and this is pressuring teenagers to try to keep up with what they perceive to be the correct way to behave by being sexually promiscuous. People in this camp say that the last thing that we should be doing is lowering the age of consent to send yet another message that young people are expected to have sex early.

On the other hand, supporters of a lower age of consent accept that society is bringing many new pressures to bear on young people, who are simply following the lead of their older role models. This is a fact, they say, and we cannot be panicked into introducing draconian controls on art, entertainment and behaviour to prevent the portrayal of sex, for example. The only way to deal with this reality, and to continue current positive trends such as a decline in unwanted teenage pregnancies, is to legally recognise that teenagers are having sex at a younger age. Then, and only then, can the issue be tackled out in the open.

Experts point out that the apparent recent increases in teen sexual activity do not necessarily mean that any more people are having sex earlier than they did in previous generations. It may simply be evidence that in our more open and tolerant society they are more prepared to be honest about it. Women have access to contraception, which was not available two generations ago, and are no longer shunned for having sex outside marriage.

spectre of abuse

Whatever the cause of current sexual activity, it cannot be ignored and keeping it criminal forces young people who have sex before the age of consent into a vulnerable world of secrecy and anxiety. This was the position for gay men before homosexuality was decriminalised for adults over 21 in 1967. The anti-gay laws were known as the blackmailer's charter because so many men fell victim to extortionists as a result of trying to live their love when the law classed it as crime.

In a way though, discussing consent misses the real point of the debate surrounding the new bill. A person below the age of 16 may consent to sex, but it would still be illegal. If, however, the other person involved is the same age, it is unlikely that there will be any criminal action. If the other person is much older, they may be prosecuted. The main aim of bill is not to protect teenagers against themselves, but rather to protect them from abuse. But this could have precisely the opposite effect of what is intended. It may lead to teenagers becoming increasingly secretive about their sexual behaviour, leaving them at more risk of becoming prey to paedophiles, for whom secrecy is an essential cloak.

An answer might be to follow the lead of countries such as Canada, where the basic age of consent is 14, but the age of those involved is taken into account with specific exceptions to the law that allow (or prohibit) sexual activity below and above 14. For example, if you're 14 you can legally have sex with a 12- or 13-year-old; if you're 15 you can legally have sex with a 13-year-old. On the other hand, it is illegal to have sex with a person under 18 if you are in a position of trust or authority over them (for example, a social worker, teacher, coach or babysitter) whether you're male or female, or under 18 yourself.