The Age of Consent

To safeguard 16- and 17-year-old children we need to raise the age of consent.

The recent accusations against Russell Brand and Huw Edwards are just the latest incidents that have prompted some people to defend older men who start relationships with children on the grounds that those children were over the age of consent at the time.

Safe Schools Alliance has long had concerns over attempts to reduce or sideline the age of consent on the grounds of ‘sex positivity’. We believe this important area of child protection legislation should be given more weight in sex education resources.

We also believe that in order to better protect children from predators, the age of consent should be raised to 18.   

Teenage relationships

In accordance with Part 1, Article 1 of the United Nations Convention on the Rights of the Child, which defines a child as “every human being below the age of eighteen years…” We believe that everyone under 18, throughout the world, is entitled and deserving of the full protections due to children and, furthermore, that they should be in education or training.  

We have seen many people express the spurious concern that children under 18 will be subject to prosecution if the age of consent is increased. However, this is a typical straw man argument: there is no evidence that children who are peers that have sex with each other are criminalised, and there is no reason to suspect that this will change in the future. Indeed, the Crown Prosecution Service states on its website that:  

“The overriding purpose of the Sexual Offences Act 2003 is to protect children. It was not Parliament’s intention to punish children unnecessarily or for the criminal law to intervene where it was wholly inappropriate.”  

Those concerned about children’s lives being blighted by prosecution can, therefore, save their worries.  However, the near impossibility of prosecuting minors did not prevent a senior Scottish police chief, in 2006, from suggesting that the age of consent should be lowered to prevent the criminalisation of young teenagers. As The Independent reports, his ideas were branded a “paedophile’s charter” by campaigners.

The Independent further reports Liz Dux’s comments – a lawyer representing 72 of the victims of Jimmy Savile for Slater & Gordon – that lowering the age of consent would give legitimacy for predatory adults “to focus their attentions on even younger teenagers.” This is most certainly true, for the lower the age of consent, the younger the children are that a sexual predator can pursue.  

This faux concern surrounding the prosecution of children is doubly absurd when one considers that the 21^st century is littered with child protection failures, with local authorities and  the police taking their time to investigate and  prosecute the adult perpetrators of sexual violence, let alone pursuing peers engaged in consensual sex. Victim-blaming by social workers and police officers, seemingly to avoid having to act against abusers, is extensively detailed in the myriad serious case reviews carried out by Safeguarding Boards across the country, for example, this report published by the Oxfordshire Safeguarding Children Board. 

Support for Changing the Law

The vast majority  – 70% – of young people aged 18-24 recognise the protective aspect of the law and voted, in a September 2023 You Gov poll, that they would support changing the laws around sexual consent so that people above a certain age would be prohibited from having sex with 16 and 17 year olds. Although not a perfect fit, the poll results largely fit with the attitudes that reflect trends in child marriage, which, before its abolition in February 2023, were at a record low.  

It is interesting to speculate on the reasons this demographic might give for their votes. Perhaps the young people in this age range are less likely to forget the trauma recorded on the Everyone’s Invited website. Perhaps they are enraged at the failure of adults to protect them growing up alongside increasingly violent pornography which sees bodies as mere objects. Or perhaps they agree with Lisa Durston, whose view is informed by her work for SARSAS, a charity which supports people affected by rape and sexual assault. Durston states that there is a “power imbalance” between someone who is 16 or 17 and a much older partner, which can make their relationship “extremely unequal.” 

We have repeatedly stated that we believe children should receive relationship and sex education. We think it is important that children under 18 understand the risks of sex, not only because of the elevated risks of physical abuse, but because of the risk of pregnancy (in 2020 there  were 12,576 under-18 conceptions in England and Wales in 2020 an all – time low due to lockdown), and its potential to affect the life chances of three people.

The statistics show: 

• 40% of teenage mothers in one research project had experienced domestic violence in the 12 months preceding their child’s 2nd birthday. 
• Girls under age 18 are twice as likely to be beaten by their child’s father than women over age 18. 
• A UK study found that 70% of women who gave birth in their teens had experienced adolescent domestic violence. 
• Almost 60% of mothers involved in serious case reviews had their first child under 21. 

Harriet Wistrich, solicitor and director of the Centre for Women’s Justice, agrees that the law should be reviewed, stating “We know older men will exploit young, vulnerable women.” With this in mind, the last thing any civilised society should want is to allow the continuation of the sexual exploitation of children under 18. One way to slow this is to increase the age of consent.  

Lack of Professional Curiousity

Children cannot be effectively safeguarded if the line between them and adults is blurred, yet a law which allows an adult man of any age to have sex with a child does just this. Sadly, as we have seen, the line between children and adults has been repeatedly crossed. For instance, despite the strictures of the Fraser guidelines, doctors readily prescribe contraceptives, and authorise abortions for underage girls, without their parents’ knowledge, in circumstances that merit safeguarding investigations.  

The Fraser guidelines were outlined by Lord Fraser in the Gillick v Norfolk Area Health Authority judgement, which ruled that there would not be a total ban on doctors providing contraception to girls under the age of 16 without parental knowledge and consent. He stressed, however, that it would be a “most unusual” occurrence, and that the Gillick judgement:  

“ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would, in my opinion, be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly.”  

Despite this statement, a relaxed attitude has developed, and there is no evidence of disciplinaries. This attitude did not escape the attention of consultants Brian Boxall and Jane Wonnacott who, in their 2013 Serious Case Review, requested: 

“the findings of this review [be drawn] to the attention of the Department of Health  and…steps… taken to ensure that  where a young  person under  the  age  of  sixteen  requests  contraception,  a full  assessment is made of their social circumstances.” (para 7.2). 

It is, at best, a serious lack of professional curiosity to fail to ask probing questions about who a girl is having sex with, in what circumstances, and why, particularly because statistics indicate that girls that become pregnant are likely to have a background that should flag safeguarding concerns, for instance:  

•  They are twice as likely to have been sexually abused. 
• They are twice as likely to have been persistently absent from school by age 14. 

Despite doctors being ideally placed to spot signs of sexual exploitation – and report these to the appropriate authorities – primary care trusts not only didn’t uniformly record data, but they were also reluctant to be transparent about their failings. When the Department of Health did agree to share the data, it revealed that:  

• 11,800 children had presented at a sexual health clinic on more than one occasion, 900 of whom had a repeat sexually transmitted infection. 
• In the 2010–11 financial year, 1,193 children under the age of 16 had a second or subsequent abortion.  

These statistics, which offer an insight into the abuse suffered by girls, are disappointing because the 2009 statutory guidance ‘Safeguarding Children and Young People from Sexual Exploitation’ states: 

“Safeguarding and promoting the welfare of children and young people…depends on effective joint working between different agencies and professionals that work with children and young people, including education…health services including sexual health services and therapeutic mental health services, youth services, Connexions and children’s social care, together with criminal justice agencies and voluntary sector services supporting children and families.” 

Thus, this statutory guidance should have rendered Boxall and Wonnacott’s request superfluous. However, it is clear that professionals did not “work together” to safeguard children who were being raped, impregnated, and infected with STIs. It is evident that laws on the age of consent were ignored by doctors who were in a position to protect abused children, thereby prolonging their abuse. Consequently, opportunities to protect children, who all too often believed their abuser to be their ‘boyfriend,’ were missed. These were serious omissions because, just by being pregnant, girls (and their foetuses) are at a greater risk of being subject to further violence. Furthermore, although we cannot tell exactly where violence occurs, it is likely to be more frequent, and severe, once a girl and her child live with their abuser.  

Children under 13

We believe that the Government needs to send a stronger signal to abusers by extending the strict liability offence of raping a child under 13 to children under 16 years old. The present law enables abusers to pressurise victims who are 13 or over into sex and then use the mitigating defence that they gave consent, or that they believed them to be 16, neither of which can be used under any circumstances with a child under 13.

No amount of teaching on consent is going to equip any child to understand how they are being manipulated and to always assert appropriate boundaries, especially against an older  – and therefore more powerful  – adult. When a 13 -15-year-old or 16 -17 year-old tries to come to terms with, and process, their trauma arising from an inappropriate or exploitative experience, it will perhaps help the child or young person to recover if they understand that what happened to them wasn’t a personal failure to assert boundaries, or make clear that they didn’t want what was happening, but instead a failure of the perpetrator and also a failure of society to protect them.  

Commensurate with their greater freedoms, adults must be made to shoulder greater responsibility for their actions, for example making it incumbent upon them to ensure anyone they attempt to have sex with is, in fact, able to consent. If they cannot behave like grown ups, they must be held accountable.  

Strategic Thinking

The Government clearly has more work to do. Its current strategy states:  

“Child marriage and having children too early in life can deprive children of important life chances…”  

But if it is serious about this strategy, if it is genuinely concerned about improving life chances of all children, it should take action to increase the age of consent and raise the age of strict liability. These actions are justified in the same way that raising the legal age of marriage was justified – because they are a proportionate means of achieving the legitimate aim of protecting children from predatory adults and reducing their exposure to potentially abusive situations.

If the Government can ban child marriage, when figures show that, in 2019 in England and Wales, 139 children aged 16 and 17 entered opposite sex marriages, it can make an effort to reduce the approximately 5,936 babies born to children (a figure that, in 2020, was an historic low due to lockdown) 2/3 of whose fathers are men over 20.

It is time to stop the discrimination: either the Government thinks that all children are worthy of protection, or it does not.