On the other hand…

Although the debate has been eclipsed by the Polanski affair, Professor John Spencer of Cambridge University recently flew the kite of reducing the age of consent – presently 16 – to some unspecified lower age. Here is the Daily Mail’s report, illustrated with a photo of a putative teenager, taking contraceptive pills:

A BBC programme is to feature a call for the age of consent to be lowered.

Law professor John Spencer will argue that the current age of consent, fixed at 16, criminalises ‘half the population’.

His controversial views will be debated on the BBC Radio 4 programme Iconoclasts tomorrow evening.

In a preview of the live programme, BBC programme makers said that the academic will argue that it should be ‘legal for young teenagers to have sex.

He says the age of consent, fixed at 16 by the Sexual Offences Act 2003, makes criminals of half the population’.

Last night MPs said it was ‘ludicrous’ to consider lowering the age of consent at a time when teenage pregnancy rates are still soaring.

Peter Tatchell has long been an advocate of a lower age of consent, combined with measures to prevent exploitation by an older partner:

Having a single, inflexible age of consent is prolematic, since different young people mature at different ages. One alternative option might be to introduce a tiered age of consent, where sex involving under-16s would cease to be prosecuted, providing both partners consent and there is no more than two or three years difference in their ages.

By restricting young people’s sexual rights, the present age limit of 16 actually makes abuse more likely. It reinforces the idea that young people under 16 do not have the right to control their own bodies. This sexual disempowerment plays into the hands of adults who want to abuse them.

Guilt and shame about sex also increase the likelihood of molestation by encouraging the furtiveness and secrecy on which abuse thrives. One way to protect young people against unwanted sexual advances is by promoting sex-affirmative attitudes which challenge the idea that sex is something sordid, and by empowering teenagers to stand up for their sexual rights. Sexually informed, unabashed and confident youngsters are more likely to resist sexual pressure and manipulation, and more likely to report abusers.

Criminalisation is dangerous because it can inhibit young people from seeking safer sex advice, condoms and the morning after pill. It can also make them afraid to report abusive relationships. They may fear getting into trouble because they have broken the law, so they stay silent.

The age of consent of 16 inhibits some teachers and youth workers from giving explicit sexual information to the under-16s. They fear being prosecuted by the police, or sued by disgruntled parents, for aiding and abetting unlawful sexual acts. This can make them reticent to provide explicit advice to under-age young people.

It is true that sex can sometimes be dangerous and harmful, but not always. At puberty, as hormones kick in, youngsters develop sexual feelings. This is entirely natural and healthy. Some teens, and even young children, innocently and spontaneously explore and experiment at an early age. It most cases this causes them no harm at all.

If there is harm caused, it is usually not as a result of sex per se, but because of emotional abuse within relationships, and unsafe sex that causes infections and makes young girls pregnant when they are not ready for motherhood.

I did not have sex until I was 18. The reason was that I attended an all boys school, and was too maladroit to persuade any of the very few girls I knew to have sex with me. There were however a number of boys at my school who did manage to have sex with each other and, no doubt, broke the law in doing so. The law appeared to make no difference to their enthusiasm, although I do have one female friend who specifically waited until she was 16 before first having sex, precisely because the law said that she could do

Although I may be corrected on this point, I have a feeling that the Crown Prosecution Service do apply an ‘age difference’ test informally when deciding to prosecute cases involving older teens and their slightly older partners. However, discretion is no substitute for legal reform. We need not replicate the Spanish approach, which sets the age at 13 subject to criminalisation if consent is obtained by ‘deceit’, between the ages of 13 and 16. A formalisation of the existing approach is a better way forward.

We could do with a little loosening of the law, I think. Teenagers should not have sexual relationships when they are young, but they do, and on balance, I think there is a good argument that the existing law does more harm than good.

By way of comparison, I am informed that it is possible to try a child for a crime, between the ages of 10 and 13 , if it can be shown that they know right from wrong. This is why the killers of Jamie Bulger were tried before a Crown Court. They sat in the dock, colouring in pictures. Similarly, it is possible to try a ‘young person’ of 14 to 17 as an adult for crimes which would carry a sentence of 14 years.

It seems odd, therefore, that a 14 year old might be thought to have sufficient moral resposibility tried as an adult for rape, but would be incapable of engaging consensually in sexual activity.