Teenagers, sex and ‘underage rape’

Seal of the Faculty of Advocates, the Scottish bar association

Every time there’s a discussion on social media about teenage sex, someone will insist that it must be rape, because anyone under the age of consent shouldn’t be giving consent. Terms like “statutory rape”, which don’t actually exist in British law, are bandied about a lot; people assume that the law is a mix of old English law, bits of American law, cherry-picked bits of current English law, and what they think the law should be. The law on this was reformed in the first term of the Blair government, and the result was the Sexual Offences Act 2003 (the Act was passed in 2003 instead of 2001 as originally intended, because the House of Lords had rejected it, so it was delayed for two years under an Act of Parliament). That Act classified sex with anyone under the age of 13 as rape, but not with anyone between the ages of 13 and 16; that is a separate (and less serious) offence. The law was reformed in Scotland by parliament in 2009, classifying the two offences as “rape of a young child” and “having sexual intercourse with an older child” respectively. I mention Scotland here because I came across a Twitter thread with a senior Scottish barrister (called to the Bar in 1998) who made the same schoolboy mistake.

In this case, the controversy was a Daily Mail article about a man in his 30s who was convicted in Newport, South Wales, in 2022 of raping a “girl under 14” when he was 14 himself, in 2005; the case arose because the man had breached the terms of his suspended sentence by going on holiday abroad without telling the authorities, and was not jailed because of the ongoing overcrowding crisis exacerbated by the aftermath of the recent riots. I could find no press reports of the original conviction and the actual age of the girl is not specified; if she was 12, the offence was rape because of her age, and if she was 13, it was only rape if it was rape (that is, achieved by force, coercion or deception), and it is unlikely that a man would be charged with rape on a legal formality for having sex with a willing partner a year and a half younger than him, almost 20 years after the event, so we can assume that force or at least coercion was involved. When someone replied asking whether the offence was just sex or rape, the lawyer replied “one is automatically the other, in law, as a 14-year-old girl cannot consent”, which is clear, as both the English and Scottish Sexual Offences Acts make clear.

As someone old enough to remember the debates leading up to this, it was never intended that teenagers would be charged with a criminal offence for having consensual sex with other teenagers in the first place; although calls to lower the age of consent to below 16 (e.g. 14) were rejected, politicians assured us that such situations would not lead to prosecutions unless there was evidence of exploitation or coercion. The previous law dated from the 19th century and the age of consent applied only to girls; it was considered unthinkable in Victorian times for a boy under that age to be sexually interested in a girl or woman, and the age of puberty was higher then due to a colder climate (the end of the Little Ice Age and long before global warming) and poorer diet. The result was that by the 1990s a boy could be charged with a criminal offence for having sex with an older girl who was still under 16, even though the girl had committed no crime; The law as it stands makes it a crime for both, although the guideline is that neither will be charged unless there is coercion. (This arrangement has its dangers; it still leaves open the possibility of charges being filed because the girl’s parents are powerful enough or because of prejudice against the boy and/or his family, for example.) If this crime were classified as rape, it would be an absurd proposition that two people would be raping each other at the same time.

However, we now have people who will scream rape on social media if they hear of two teenagers having sex, even if they are both under 16, in apparent total ignorance of both the letter and spirit of current sex offences legislation. Part of this stems from activist culture, which posits that boys are automatically more guilty than girls because they are bigger and because as men they have power that women do not (a ridiculous assumption to make of teenagers, where the boy could be poor, from an abusive home, in foster care or at the bottom of the ladder in school). They will respond with “so what?” if you mention that the boy was underage himself in any case; clearly the intention is to drag us back to the pre-2003 era, when the boy was always guilty. To them, boys are males while girls are children; boys are predators from puberty onwards while girls are eternal victims. However, this is the second time I have had to correct a real lawyer about a fairly recent, well-known piece of legislation that was the subject of heated public debate at the time. An expert can be wrong, no matter how outspoken he is in proclaiming his incorrect views.

And let’s be clear: teenagers are expected to be competent in certain areas. The age of criminal responsibility is 10, and the doctrine of Gillick Competency means that their opinions are taken into account when making decisions about medical treatment. This notion that sex between two teenagers cannot possibly be consensual and must necessarily be predatory on the part of the boy does not make sense. As someone who lived through the era when it became clear that teenagers had rights and that their opinions about their own lives were worth listening to, it is disturbing to see members of the generations that first benefited from this 20 years ago — my generation, people in their 40s and 50s now — demanding that today’s teenagers have fewer rights and should be treated like children unless there is something to blame them for.

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