Sexual activity between children

I am writing this on 4 September 2003. The morning newspapers are full of a typical case of boy and girl infatuation, though in the photographs the two children look almost adult. Clearly both are early maturers, as so many kids are nowadays. I read that in June 2003 Ashley Lamprey, a boy of 14 from Ackworth Moor Top near Pontefract in Yorkshire, was on holiday with his parents on the Greek island of Kefalonia. There he met 12-year old Natasha Phillips from Newport Isle of Wight. They fell in love. Later, back in England, the romance continued at a distance. At the beginning of September they eloped. The girl’s mother is reported as saying ‘This was just a holding hands and kissing holiday romance which we thought would fizzle out’. She said she had tried to discourage the relationship but was worried that her daughter would become resentful if she interfered:

‘. . . she would get so upset and I was worried she would hate me. Ashley came to visit us for one day in August. I took the day off work to watch them and they went to the pictures together and both cried when they parted’.

When the couple finally eloped Natasha left a note for her mother saying ‘I love you but everything is black in my life and I have to go’. [45] Next day it was reported that the couple had been found. The parents said they would let the ‘puppy love’ relationship continue, adding ‘We will try to treat them as young adults’. The report continued-

‘Police are not expected to take any action against the youngsters, although Superintendent MacDougall said: “Part of the police force’s work is to protect life and look for and find missing persons. But if I am honest, we could well do without having to spend the amount of time, effort and energy looking for people like Natasha and Ashley”.’ [46]

This story has lessons for legislators considering the Sexual Offences Bill. If enacted, clause 14 of the Bill would turn consenting youngsters like these (and there are many of them) into criminals and threaten them with imprisonment for up to five years. That is plainly inappropriate, and could do great harm. The Government’s answer is that there would not be a prosecution in such a case. Paragraph 37 of the Government white paper on the Bill states-

‘. . . in some circumstances, particularly where the partners are close in age and apparently agree to take part in sexual activity, it may be more appropriate to pursue the matter through child protection rather than criminal justice processes, out of concern for the welfare of both the children involved. In other cases, even when both parties are children, one may already have a history of abusive sexual behaviour towards other children, which justifies the involvement of the criminal law, or his or her behaviour may have been sufficiently exploitative or abusive to merit prosecution. The Crown Prosecution Service already has discretion about whether prosecution is in the public interest . . .’ [47]

On this I will quote from the short book I wrote on the Bill entitled Sexual Ethics and Criminal Law [48] -

‘It is surely quite wrong that the police and Crown Prosecution Service should be involved at all in such cases. The fact that the CPS might eventually decide that it is not in the public interest to proceed with a prosecution even though technically a crime has been committed is no answer. The existence of this residual CPS discretion should never be used as an excuse for labelling conduct as criminal when truly it is not. The right of any citizen to bring a private prosecution also has to be borne in mind here. This right might be exercised for example by a spiteful neighbour. Nor in such cases is it ‘appropriate to pursue the matter through child protection . . . processes’. This still brands the children’s conduct as criminal, calling for intervention by state services. Such intervention can do immense harm to the children, and is uncalled for.’ [49]

I am at present concerned only with how the criminal law treats or should treat consensual sexual activity between children who are both under the age of consent (16) but over the age of criminal responsibility (10). This is an age range of only six years, but they are the crucial years of puberty. Clause 14 proposes to criminalise children who are within this age range to a far greater extent than is reasonable or proper. Immense harm will flow from this error if it is not corrected. Almost all children of that age engage in sexual acts to some extent because it is natural to do so; so almost all children will be tainted by our law as criminals. That is absurd. I would also call it wicked, and I am striving to prevent it. It is my second such attempt. Earlier, as mentioned above, I wrote a short book on the same Bill entitled Sexual Ethics and Criminal Law. Earlier still I wrote a book on secular sexual ethics entitled The Sex Code. [50] This is relevant because no act should be made a crime unless it is immoral (though it does not of course mean that all immoral acts should be made crimes). That poses difficulties in a society like ours, where morality is uncertain or varied. The sponsors of the Bill have not overcome those difficulties; worse they have not even faced them. Indeed they have not recognised their existence. In the sexual field especially, that is unforgivable. Sex law must not overrun sex morality.

The Oxford English Dictionary defines a crime as ‘an evil or injurious act; an offence, a sin; especially of a grave character. [51] An act should not be stigmatized by the law as a crime unless it has this grave character. Consensual childish sex behaviour, being entirely natural, lacks this required quality. In early times most human societies did not see the need for their sexuality to be regulated by any legal or ethical system at all. Until the Emperor Constantine introduced the novel precepts of Christianity, ancient Romans saw sexuality as moral-free - to be enjoyed to the full like any other natural human attribute. Those old pagan Romans were sex positive, and did not suffer from our 21st century hang-ups.

‘We cannot apply our own concepts of what is pornographic, sinful or shameful to the Romans. They bought and enjoyed objects, or even commissioned paintings for their homes, that frankly represented sexual intercourse in many different forms. There are images of men and women making love, but also of men making love to boys and sometimes other men, women pleasuring women, and sexual threesomes and foursomes . . . Looking at these images of love-making with the eyes of the Romans allows us to enter a world where sexual pleasure and its representation stood for positive social and cultural values. Today’s society is obsessed with sex as transgression.’ [52]

This author adds that our current attitudes shroud sexual acts in secrecy, and associate sex with guilt, sin and punishment. ‘They make what is a guilt-free and ubiquitous human pleasure in other times and other societies into a sick thing . . . Roman people of both sexes and of all classes delighted in looking at love-making . . . Sex was in plain sight of all.’ [53]

Our current negative attitudes bear especially hard on pubescent boys, whose new-found virility is commonly denied, if not derided, debased and impugned, by adults close to them. In Britain the boys’ plight has been ignored but in the United States there have been indomitable researchers like Alfred C Kinsey and Shere Hite who think this matter requires investigation and exposure. I quote now some findings from the Hite Report on Male Sexuality. [54] These raise questions about the British impulse to criminalise children who partake of under-age sex, even with their age mates. I quote just a few instances out of many in the Hite Report which illustrate the way boys behave when puberty strikes them and no adult is looking.

‘My best friend and I used to tell each other dirty stories and stimulate each other sexually when we were younger. We started doing so before we knew that society did not approve. When we found out in a fifth-grade sex education class that boys were not supposed to engage in such things, it had little effect on us because we already knew it did us no harm. We continued these friendly sex acts until we were able to start fulfilling our sex cravings with girls. Our last experience was at sixteen. I don’t think either of us ever had sex with a male again.’ [55]

‘I first experienced intense sensations and my first orgasm at about age thirteen. About this time also several boys and I engaged in mutual masturbation that eventually led to fellatio and anal penetration. As I remember, all I thought about was how good it felt.’ [56]

‘My first experiences were with other boys – we talked about sex a lot, compared organs, masturbated together, and also did have some homosexual sex play – I was jerked off by a male friend when I was thirteen and I jerked him off – we did this occasionally for about a year . . . I didn’t have the confidence to attempt sex with a girl. The thought during this homosexual play was also heterosexual – the fantasies were always heterosexual. A girl’s genitals were a mystery that I very much wanted to solve and a girl’s breasts were things I very much wanted to play with.’ [57]

‘In seventh or eighth grade, a bunch of us guys discovered masturbation and then discovered that the others had discovered it too; we held jerk-off parties, trying to see who could come first and shoot farthest!’ [58]

‘My oldest brother once had me masturbate him while he was in the tub. He was sixteen. I was eight. I thought his cock was huge and beautiful, and I enjoyed it.’ [59]

‘I used to suck my brother’s penis when I was seven or eight. It felt natural and easy at the time.’ [60]

‘When I was at camp when I was twelve and we were all taking showers, we started masturbating and feeling each other. Then we climbed into the steam room, where we all lay down. I was lying there when my friend jumped on me and started pumping (all the other kids were doing the same), and then I remember very vividly how he went crazy till I think he reached some sort of climax or orgasm. We did that a lot that summer.’ [61]

‘I remember at twelve, with a boy, I sucked him by pure instinct.’ [62]

Clause 14 will catch many such childish acts that are natural, normal and essentially harmless, and dub them ‘crimes’. What exactly does it provide? In outline, and so far as it falls within the scope of my particular objections, clause 14, as we have seen, renders criminal any consensual sexual behaviour between age mates within the range 10-15. There are four distinct offences, which may be described as sexual activity with another child, causing or inciting such activity, sexual activity in the presence of another child, and causing a child to watch sexual activity. The provisions are highly complex. To be understood they need to be fully explained. [63]