Chapter 7
Briefing by Family Planning
Association (fpa)
Note The footnotes in the document
put by the fpa on the Internet and here reproduced have
been omitted in this version.
July 15 2003
SEXUAL
OFFENCES BILL
KISSING
A CRIME FOR UNDER 16s
House
of Commons Second Reading Briefing
fpa welcomes the Government’s wish to reform the law on sexual offences. We
agree with the description in the White Paper Setting
the Boundaries of the current law as archaic, incoherent,
discriminatory and inadequate to deal with the needs of
modern society.
fpa defines sexual health as ‘the
capacity and freedom to enjoy and express sexuality without
exploitation, oppression, physical or emotional harm’ . . . In looking at the provisions of the Sexual Offences Bill we
have considered in particular the balance between the need
to protect vulnerable people from abuse with the right of
all individuals to enjoy good sexual health defined in this
way.
The White Paper Setting the Boundaries stated that:
‘It is
the role of the criminal law to establish what is and what
is not acceptable behaviour: yet it must also treat everyone
in society fairly …
Our guiding principle was that this judgement
on what is right and wrong should be based on an assessment
of the harm done to the individual (and through the individual
to society as a whole).’
Our
view, shared by the Joint Select Committee on Human Rights,
is that the Bill does not achieve this end because it criminalises
the sexual activities of all young people, regardless
of whether this is done with or without consent.
Criminalising consenting sexual relationships
between adolescents (clauses 6 to 14)
fpa’s major concern about this Bill is that it
makes all consenting sexual activity between children, from
full sexual intercourse to touching someone through clothes,
a criminal offence. At the most extreme, this means that
a 12 year-old boy who has sexual intercourse initiated by
a girl his age will be automatically guilty of the offence
of rape of a child under clause 6, carrying the maximum
penalty of life imprisonment.
At
the other end of the spectrum, two 15 year-olds who indulge
in consensual ‘sexual touching’, which includes kissing,
will both also be automatically committing criminal offences
under clause 10, imprisonable for up to five years.
fpa believes that the Bill should be amended to permit
the defence of consent to those who have ‘proximity of age’
– specifically, the defence should be allowed for under-16s
who have sex with under-13s, and for under-18s who have
sex with under-16s.
A number of European countries
have decriminalised sex between children, either through
having a high age of criminal responsibility or explicitly
within the criminal code (as, for example, Finland has done
by declaring that sex with under-16s shall not be deemed
an offence ‘if there is no great difference in the ages
or the mental and physical maturity of the persons involved’).
We are not suggesting that sex between children in which
there has been no valid consent should be decriminalised,
though we strongly believe that child sex offenders should
have a rehabilitative rather than a penal response.
fpa
believes that the Bill as its stands is bad
law, for the following reasons:
·
Criminalising consenting
relations between adolescents fails to distinguish true
assault from non-harmful sexual activity, thus devaluing
the suffering of genuine victims of child abuse.
The work of professionals in child protection will
be needlessly complicated because they will be forced to
make secret, legally unjustifiable distinctions between
‘real abuse’ and ‘technical abuse’.
·
The Bill does not
reflect the reality of modern society. Recent figures from
the National Survey of Sexual Attitudes and Lifestyles in
Britain show that a quarter of women and nearly a third
of men in the current 16-44 age group had sex under the
age of 16. The average age of first sexual experience (‘sexual
activity’ under the Bill) is now 14 for girls and 13 for
boys. The Bill harks back to a time when homosexuality was a criminal
offence, a husband could rape his wife with impunity and
school pupils were forbidden to hold hands in the street.
While the Government may prefer adolescents not to
engage in sex, it would be extremely naïve if it thought
that an Act of Parliament could put a stop to this – any
more than the criminal law stopped homosexuality.
Although
there may not be many prosecutions of consensual adolescent
relationships, criminalisation will have the effect of making
children feel twisted, furtive and guilty about sex, which
can only be harmful to their psychological development.
They will be less likely to talk to responsible adults,
for fear of getting themselves or their partners into trouble,
and will thus be more likely to risk harm to their sexual
and emotional development, as well as risking unwanted pregnancies
or untreated sexually transmitted infections.
In particular, under-13 year-olds, the most vulnerable
group, may be terrified of both the criminal justice and
child protection systems because sexual intercourse is automatically
both rape and child abuse.
·
The current Bill
breaches children’s rights under the Human Rights Act. The
Joint Human Rights Committee was specifically concerned
about the clauses in the Bill relating to the offence of
‘sexual touching’ in relation to under-13s (clauses 9 and
10). Their concerns can equally be applied to clauses 10
and 14, relating to the older age group of 13 to 15 year-olds.
The
Committee identified a breach of Article 8.2 of the Human
Rights Convention, right to ‘private life’; it did not accept
that there were any justifications for this breach that
are made available under Article 8.2. It said:
‘The offence seems to us to be over-broad, to impose liability in a way
that is not adequately tailored to the legitimate objective,
to interfere with the right to respect for private life
more than is necessary for that purpose in a democratic
society, and to contain insufficient safeguards against
violation of the rights.
We draw this matter to the attention of each House.’
The
Committee was of the view the Bill could reflect a better
balance between the rights and interests of children and
commented:
The Government does not suggest that it would be impossible to do this,
but it prefers not to try, in case the legislation fails
to cover every conceivable case in which one might want
to prosecute. Instead of striking a proper balance, this
approach in effect refuses to take on the task, leaving
it to the discretion of prosecutors to make sure that the
legislation does not systematically violate people's rights.
These
concerns were reiterated by the Committee in its more recent
Report on the UN Convention on the Rights of the Child (June
24 2003).
·
The Government
has offered no evidence to show that consenting sexual activity
between children is harmful, nor has it made any principled
defence of the Bill’s criminalisation of these activities.
How the Government has responded on this issue in the House of Lords
While the Bill was passing through the House of Lords, the Government acknowledged
at Committee Stage that:
‘In
those cases where sexual activity between minors is truly
mutually agreed and there is nothing to suggest that the
activity is in any way exploitative, we would not expect
and would not want the full weight of the criminal law to
be used against them.’ (1 April, col 1177).
At House of Lords Third Reading, the Minister further stated:
‘We accept, however, that genuinely mutually agreed, non-exploitative sexual
activity between teenagers does take place and, in many
instances, no harm comes from it. It is therefore important
that we ensure that these children do not end up being prosecuted
or issued with a reprimand or final warning, and we will
introduce additional safeguards to ensure that this is not
the case’
She therefore
proposed these safeguards:
‘The guidance to be issued by the Director of Public Prosecutions to custody
officers under the provisions of the Criminal Justice Bill
will provide that the decision whether children under 18
should be charged with child sex offences will be reserved
for Crown prosecutors rather than the police. The Crown
Prosecution Service will be issuing guidance to its prosecutors
about which factors should be taken into account when making
such decisions.
The type of factors to be considered would include the relevant ages of
the parties; the emotional maturity of the parties and whether
they entered into a sexual relationship willingly; any coercion
or corruption by a person and the relationship between the
parties; and whether there was any existence of a duty of
care or breach of trust.’ (June 17 2003, col 690)
However, the
Government resisted amendments which would have clarified
in the Bill that under-18s who had consenting sex, or ‘sexual
activity’, with adolescents under the age of 16 would not
be committing an offence.
Various arguments
have been raised against this, by the Government and others,
to which we respond as follows: ‘But children can be abusers
as well as adults’.
Yes
of course this is true.
Indeed, official research suggests that adolescent
sex offenders may commit up to a third of all sex crimes.
As stated above, we are not proposing that rape or
sexual assault by children should be decriminalised (though
we strongly believe that effective child protection is achieved
by the state imposing compulsory treatment, rather than
punishment, on these offenders). Children between 10 and
17 should still be liable under the Bill for the offences
of rape, assault by penetration, sexual assault and causing
a person to engage in sexual activity without consent, under
clauses 1- 5. And
while the defence of consent could be raised in relation
to all victims, obviously the younger the child the harder
it would be to prove that any alleged consent was valid.
It is inconceivable, for example, that anyone could
prove that a child of primary school age validly consented
to sexual intercourse.
‘The Bill just repeats existing law – so why should it make any difference?’
This
seriously underestimates the social effect of enacting new
laws. The reason nothing serious happens at the moment
is because the law is not understood or is ignored. But a new law sends strong messages, even when
it is not enforced. For
example Section 28, so poorly drafted it was almost unenforceable,
nonetheless had a blighting effect on education about homosexuality
for a whole generation of children.
Nor
is it true that the Bill just ‘repeats existing law’.
New offences are introduced, as are new terms – for
example, ‘indecency’ is deliberately replaced by the much
more easily proved, and broader, ‘sexual activity’.
For example, the Minister confirmed to the Joint
Human Rights Committee that kissing was an element of sexual
activity, although it is doubtful whether this would be
judged to be an indecency.
‘The Government has promised to instruct the prosecution
services not to pursue children engaging in harmless consensual
sex’
It
seems ill-advised to enact a law that has to be wholly contradicted
by subsequent guidance.
In
any event, this ‘solution’ does not deal with the effects
of criminalisation discussed above. A decision not to prosecute
comes much too late for children who may have had their
private lives investigated by strangers and been accused
of committing a criminal offence. Their behaviour should
not enter the ambit of the criminal justice system in the
first place. Moreover,
the Government cannot force the prosecution services to
overlook breaches of criminal law, though prosecution protocols
can advise this. There is no ultimate protection for children
against the particular sexual morality of the individual
adults concerned in their case – such as the child’s parents
(who can lay a complaint) or the local CPS officers.
‘But
we are committed to having an ‘age of consent’ and this
must mean exactly what it says.’
The
Bill does not consistently uphold the age of consent because
it already permits various kinds of under-age consent. For example:
·
Under the Bill
someone can plead a defence of consent against a charge
of rape of 13, 14 and 15 year-olds.
If there has been no consent, then the general rape
charge may be brought under clause 1, and with consent a
charge of ‘sexual activity with a child’ may still be brought
against the perpetrator since there is no defence of consent
available for that offence.
Thus ‘under-age’ 13-15 year-olds may under the Bill
consent to sexual intercourse, though not to sexual activity.
·
Under the Bill
16 and 17 year-olds may consent to sex unless it is with
someone in a position of trust, for example their teacher.
If, however, they were having sex before the teacher
took up the post, then no offence is committed and they
can carry on having sex (clause 26). Thus an under-age person may consent to sex
with one ‘prohibited’ person but not another.
·
An adult, but not
a child, can be charged with sexually grooming a child under
16 (clause 17). Thus
the Bill allows children to consent to sexual grooming by
children but not by adults.
What
we are seeking is a law setting an age of consent that stops
adults from having sex with under-16 year-olds, but which
recognises that consent may be possible between adolescents.
‘You
have to draw a line somewhere.
What you are proposing is just as arbitrary as the
Bill’s provisions.’
It
is true that all age-based laws are irrational, since a
person is essentially the same on the days before and after
their 13th, 16th or 18th
birthday. But what
we are proposing is considerably more rational, more just
and more likely to protect children from harm than the Bill
in its current form.
‘Some
girls say that they like having an age of consent because
they can use it to fend off unwanted sexual pressure from
boyfriends.’
Surely
the main point is that girls should be helped to understand
that they have personal control over their sex lives and
their bodies. A logical consequence of this argument is
that 15 year-old girls will be unable to resist their boyfriends
on their 16th birthday.
In fact this allegation appears to be one of those
anecdotal ‘facts’ that are often brandished in debate, but
are not held up by the reality of children’s behaviour.
If the average age for first sexual activity is 14
for girls and 13 for boys, then we have the unlikely proposition
that children welcome the criminalisation, not of behaviour
they might be faced with in the abstract, but of behaviour
most of them are currently engaged in.
Research
shows, in fact, that the law has remarkably little effect
on young people’s sexual behaviour and, if anything, that
peer behaviour is the key influence.
[i]
Girls may indeed need to be more assertive
about not wanting sex, but expecting the law to do this
for them is wholly unrealistic.
Quite the reverse. A belief that the law is keeping girls safe
from pushy boyfriends may allow parents and teachers to
abdicate responsibility for actively helping girls to be
strong in their sexual relationships.
‘Decriminalising
consenting sex sends the wrong message to under-16s because
we want to discourage them from all forms of sexual activity.’
First,
the criminal law is a very poor tool for influencing consenting
sexual behaviour. Look at how unsuccessful the criminal
law was at stopping homosexuality.
Secondly,
criminalising teenage sex sends other harmful messages to
teenagers. For example, it tells them that the criminal
law is stupid. How can we ask young people to respect the
law and at the same time tell them that two 15 year-olds
having a grope is a criminal offence for which there is
no defence?
It
tells them that adolescent sexual exploration, a perfectly
natural thing, is wrong, bad and a matter for state intervention.
The psychological damage that may do to healthy sexual development
is incalculable, but profoundly important to the individuals
concerned.
And
it tells them to be cautious about seeking help for the
consequences of their sexual activities—in particular, of
course, preventing teenage pregnancies and combating the
‘epidemic’ of sexually transmitted infection to which the
House of Commons Health Select Committee has recently drawn
our attention.
[ii]
The
Bill must be amended to reflect the real lives and needs
of young people today. It is unnecessary, and dangerous, to criminalise
all normal adolescent behaviour in order to criminalise child sexual abuse.
For
further information please contact, Karen Brewer fpa’s
Director of Communications on 020 7923 5219 or fpa’s policy consultant Rachel Hodgkin on 020 8889 9034.
