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Teens, sex and “statutory rape”

by · 24th August, 2024

Seal of the Faculty of Advocates, the Scottish lawyers’ body

Any time the matter of sex involving teenagers is adiscussed on social media, there is someone who insists that the act must be rape because someone younger than the age of consent cannot consent. Terms like “statutory rape”, not actually a thing in British law, get thrown around a lot; people presume that the actual law is a mixture of old English law, bits of American law, cherry-picked bits of current English law, and whatever 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 2003 Sexual Offences Act (the law passed in 2003 rather than 2001, as originally intended, as the House of Lords rejected it, so it was delayed for two years under the Parliament Act). That law classed having sex with anyone under the age of 13 as rape, but not those between 13 and 16; this is a separate (and lesser) offence. The law was reformed in Scotland by its parliament in 2009, and it classified the two offences as “rape of a young child” and “having intercourse with an older child” respectively. I mention Scotland here because I came across a Twitter conversation involving a Scottish senior lawyer (called to the Bar in 1998) which made the same schoolboy error.

In this case the controversy was a Daily Mail article about a man convicted in 2022 in Newport, south Wales, in his 30s of raping a “girl under 14” when he was 14 himself, in 2005; the case arose because the man broke the terms of his suspended sentence by going abroad on holiday without notifying the authorities, and was not imprisoned because of the ongoing overcrowding crisis made worse by the aftermath of the recent riots. I could not find any press reports about 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 technicality for having sex with a willing partner a year and a half younger than him nearly 20 years after the event, so we can presume that force or at least coercion was involved. When someone replied asking whether the offence was merely sex or rape, the lawyer responded “the one is automatically the other, in law, as a 14yo girl cannot consent”, which is plainly wrong, as both the English and Scottish Sexual Offences Acts make clear.

As someone who is old enough to remember the debates that led up to it, it was never intended for teenagers to be charged with any criminal offence at all for having consensual sex with other teenagers; while calls for reducing the age of consent to below 16 (14, say) 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 to girls only; it was presumed unthinkable in Victorian times that a boy under that age would be of sexual interest to any girl or woman, and the age of puberty was higher then because of a colder climate (tail end of the Little Ice Age and very much pre global warming) and poorer diet. The upshot was that, by the 1990s, a boy could be charged with an offence for having sex with an older girl who was still under 16, but the girl had committed no crime; the law as it stands now makes it an offence for both, though in the absence of coercion, the guidance is that neither will be charged. (This arrangement has its dangers; it still opens up the possibility for charges to be laid because the girl’s parents are powerful enough or because of prejudice against the boy and/or his family, for example.) Were this offence to be classified as rape, it would present the absurd proposition of two people simultaneously raping each other.

We now, however, have people screaming rape on social media any time they hear of two teenagers having sex, even when both are under 16, in apparent total ignorance of both the letter and spirit of current sexual offence legislation. Some of this stems from activist culture, which holds that boys are automatically more culpable than girls because they are bigger, and because as males they enjoy power that females do not (a ridiculous assumption to make of teenagers, where the boy may be poor, come from an abusive home, be in care, or be at the bottom of the pile at school). They will respond “so what?” when you mention that the boy in whatever case is being discussed was himself underage; plainly, the intention is to drag us back to the pre-2003 era when the boy was always culpable. To them, boys are males while girls are children; boys are predators right from puberty while girls are perennial victims. However, this is the second time I’ve had to correct an actual lawyer on a fairly recent, well-known piece of legislation that saw vigorous public debate at the time. An expert can be wrong, however forthright he is in stating his erroneous views.

And let’s be clear: teenagers are judged to have capacity in certain areas. The age of criminal responsibility is 10, and the doctrine of Gillick Competency means that their views are taken into account when making decisions about medical treatment. This notion that sex involving two teenagers cannot possibly be consensual and must necessarily be predatory on the boy’s part is not logical. As someone who lived through the time when it came to be understood that teenagers had rights, and that their opinions on their own lives were worth listening to, it is upsetting to see members of the generations that were the first beneficiaries of this twenty years ago — my generation, people in their forties and fifties now — demanding that today’s teenagers have fewer rights and should be treated as children other than when there is something to blame them for.

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