Let’s have a look at the issue of sexual activity within a consensual relationship, where one or either party is under age.
The age of consent is 16 – this is gender neutral meaning this applies to same sex relationships as well as heterosexual relationships. Unless – the older person is in a position of trust then the age of consent becomes 18.
If a child is under the age of 13 when sexual activity takes place then there simply is no defence, the offence is complete. A child aged 12 or under cannot consent to sexual activity in law under any circumstances and sexual intercourse with someone 12 or younger is rape – regardless of how old they looked, the clothes they were wearing, whether they consented or even initiated sexual activity – it is illegal in every circumstance.
If a child is aged 13-15 then there is a defence available, and that is that there was a reasonably objective belief that the other party was aged 16 or over, and that they consented to sexual activity taking place. The police will look into your contact history, social media, text messages etc for anything to support the theory that you knew they were under 16 and you should therefore be prosecuted for an offence. So – think about this, if the Police are likely to uncover a text from you to them wishing them a happy 15th birthday for example then this defence is blown.
In a situation where there is an alleged abuse of position, not only does the age of consent increase to 18 but there is much less likely to be a defence – when we think about an abuse of position we think of teachers; how likely is it that a teacher would not know or be aware of the age of the pupil they are having a consensual relationship with? Both parties might think it is a loving relationship on an equal basis but if you are a 22year old newly qualified teacher and are sexually attracted to your 17 year old pupil beware – any action you take towards this attraction is criminal and will have very serious consequences for you, your pupil and your future.
Where both parties are under age – for example a 15yr old boy and a 14yr old girl – then whilst technically both are culpable in reality most cases would see only the boy prosecuted.
A common scenario perhaps is where the offender is under 18 – perhaps you have a 17yr old son who is in a relationship with a 15 year old girl. They have been together for 2 years and you are aware that their relationship is serious and possibly even sexual. Your son must be made aware that by having sex with the girl he loves and is in a committed relationship with is illegal as she is under 16 and he knows her age. If he is reported, he will be charged with an offence and prosecuted. He will have a criminal record and (even if he only receives a caution) will have to sign the Sex Offenders Register and this will follow him around for the rest of his life, affecting his work prospects, interactions with family members who have children, it could be reported in the media and people in the street will know, and will gossip and exaggerate. It is important that our sons and daughters are educated on this subject so they don’t fall into a trap which then affects their entire futures. It feels like a harsh outcome from what is essentially a loving relationship, however it could very well result in a criminal record for him. If your son or daughter are accused of sexual activity with a child and they are in this position then call us, we would petition the CPS to challenge any decision to criminalise someone for an act like this – in our view this is improper behaviour rather than criminal activity.
The law is there to protect children which is absolutely right, however the Sexual Offences Act 2003 casts its net wide and captures people who have – in law – offended but where it isn’t as black and white and can and should be argued.
Imagine your child being labelled as a Child Sex Offender and what that might bring for them and your family. Imagine your son being made to sign the Sex Offenders Register and having that around his neck when he is looking for work, or a university to attend. Imagine your child having “peado” shouted at him in the street while he is just walking home from college, and the image of him that this will give other people that don’t know the full story and fill the gaps in their knowledge with their own narrative.
These aren’t the kinds of people the Sexual Offences Act was designed to capture, but often does.
If you would like to discuss an ongoing case involving these issues, call Forrest Williams now on 01623 397200. We will listen, without judgement, and offer you specialist advice.
