Under-age lovers face jail for a kiss

The Sexual Offences Bill is child abuse masquerading as child protection

Peter Tatchell, www.petertatchell.net, December 2008

If the Home Secretary, David Blunkett, gets his way, modern-day Romeos and Juliets will be threatened with five years jail for a mere kiss or caress. For the first time in British law, all forms of consenting sexual behaviour between two people below the age of consent will be explicitly criminalised.

This is one of the gravest attacks on the sexual human rights of young people for 50 years. It is child abuse masquerading as child protection.

Up to now, criminalisation has been by default. The current law dictates the fiction that everyone under 16 is incapable of consenting to sex and that any sexual act involving a pre-16 year old is therefore "sexual assault" - even if both partners say they consented.

This repressive stupidity is bad enough. But it is about to get much worse. The Sexual Offences Bill (SOB) creates the specific new crime of "child sex offences committed by children or young persons" under the age of 18 with partners under 16.

Fifteen-year olds who kiss and fondle each other behind the bike sheds will, under Clause 14, face a maximum sentence of five years imprisonment. Two 12-year old child sweethearts who do the same thing will be committing an even graver offence. According to Clause 8, the most trivial and innocent sexual contact with a person under 13 is punishable by up to 14 years jail. If both partners are under 13 they will not be exempt from potential prosecution. Clause 8 classifies them as major sex criminals, on a par with a 60-year old abuser.

Under the SOB, "touching" anyone less than 16 years old will become an explicit crime if "the touching is sexual".

 "Sexual" is defined as any activity a reasonable person considers "may" be sexual. Mutual consent, analogous ages and tender caresses within the context of a long-term, loving teenage relationship will be no defence.

With regard to sexual behaviour between people just under and just over the age of consent, a small age difference between partners will be equally criminal as a large one, and sexy cuddles are lumped together with penetrative sex. Any dalliance with a 15-year old - whether kissing or intercourse, and whether the perpetrator is 18 or 48 - will risk the same top penalty of 14 years. The SOB treats a three-year age difference the same as an age gap of 33 years.

The Family Planning Association has condemned the legislation for its blanket criminalisation of all consenting sexual activity involving the under-16s. It fails to distinguish between abusive relations and desired sexual behaviour, according the FPA's chief executive, Anne Weyman.

The Home Office says consenting under-age partners are "unlikely" to be prosecuted. Why, then, are they being criminalised?

Even in the absence of prosecution, the mere fact of criminalisation sends the wrong signal. It brands the sexually-active under-16s (more than half the under-16 population) as sex criminals. It signals that the sexual human rights of pre-16-year olds are not respected; and that those who are mature enough have no right to make a decision about when they are ready for a sexual relationship.

Parents are also at risk under Clause 15, which prohibits the "arranging or facilitating" of under-age sex. Most mums and dads would prefer their children to delay sex. But if young people are sexually active, many parents would rather they had sex in the safety and security of their home, where they can keep an eye on them.

That is no excuse, according to Mr. Blunkett. A mother who knowingly allows her 15-year old son to have sex with his 15-year old girlfriend in the family home could, in theory, face a jail term of 14 years. The same penalty could apply to parents, teachers or agony aunts who suggest to under-age youths that it is OK to explore their sexuality.

Even if the SOB is rarely enforced, it will - like Section 28 - create a repressive legal framework that could be exploited by morality campaigners like Brian Souter and Victoria Gillick. A private prosecution may not succeed, but it could provoke anxiety among the under-16s, and inhibit the provision of honest, straightforward advice in schools and youth clubs.

The SOB is the latest example of how a justified concern about child sex abuse has given way to a moral panic concerning teenage sexuality. A century after Sigmund Freud revealed the reality of young people's sexual desires, David Blunkett, the most puritanical Home Secretary since David Maxwell-Fyfe in the 1950s, is in deep denial.

His SOB is premised on the assumption that sex is nasty and bad, that all under-age sex is abusive and damaging, and that pre-16s have no sexual desires and no ability to make wise, responsible decisions. This head-in-the-sand attitude ignores the facts.

Young people typically reach puberty between the ages of eight to 11. That is when their hormones switch on and they develop a natural curiosity about each other's bodies and sex. This sexual exploration and experimentation is a spontaneous, innocent part of growing up. Mr Blunkett believes it should be a crime.

The National Survey of Sexual Attitudes & Lifestyles (1994) found the median age of first sexual experience among 16-24 year olds was 14 for girls and 13 for boys (sexual experience includes everything from kissing to caressing, mutual masturbation, oral sex and intercourse). A survey in 2000 for the Channel 4 television programme, 'Sex from 8 to 18', revealed the average age of first intercourse is now 15.

The SOB says all these young people are criminals. Hell-bent on repressing their sexuality, it denies them the right to sexual pleasure and rejects the idea that they have sexual human rights.

David Blunkett justifies his stance in the name of child protection. He says it is impossible to draft legislation to distinguish between consensual under-age sex involving people of comparable ages and abusive relations perpetrated by much older adults. Nonsense.

The SOB could be easily amended to de-criminalise sex with the under-16s where both partners consent and there is no more than three years difference in their ages. Mutually agreed sex would, for example, be lawful between a 13-year and a 14-year old, but not between partners aged 13 and 30. This amendment would strike a balance between rights and protection.

Similar clauses already exist in the German, Israeli and Swiss age of consent laws. If there, why not here? An answer please, Mr. Blunkett.