Sexual human rights for the under-16s
Education, not criminalisation, is the best protection
By Peter Tatchell, human rights campaigner
Text of Peter Tatchell’s speech to the Sex and the Law conference in Sheffield, England, on 23 September 2010, organised the Centre for HIV and Sexual Health:
I want to start by proposing that sexual rights are human rights. The right to love and have a sexual relationship with the person of one’s choice is as much a human right as freedom of religion and the right to protest. Yet not a single international human rights convention recognises sexual rights and freedom of sexual expression.
This failure to extend human rights into the sexual sphere includes a social and legal failure to acknowledge the sexual human rights of the many young people who have consenting, victimless sex prior to reaching the lawful age of consent of 16.
I believe the time has come for a calm, rational debate about the age at which young people should be lawfully entitled to have sex. We need this debate because the current age of consent in Britain, and many other countries, ignores reality.
Contrary to the malicious misrepresentations of many of my critics, the public debate I am urging is not about adults having sex with children. Child sex abuse is wrong. Full stop. I do not, and never have, endorsed the sexual abuse of children by adults. What I am talking about is sexual relations between young people of similar ages.
Whether we like it or not, most British teenagers have their first sexual experience with their peers, at around the age of 14. Indeed, the average age of first sexual contact is now 14, according the National Survey of Sexual Attitudes and Lifestyles. These first sexual encounters may include intercourse or may be limited to oral sex, mutual masturbation and sexual touching. Sexually-active, under-age young people are branded as criminals and sex offenders by the law, even when they and their partners consent and when neither of them is harmed or complains.
The Sexual Offences Act 2003 compounded these problems. For the first time in British law, consenting sexual activity between two young people under the age of consent – say 15 years old – became an explicit criminal offence. Any sexual contact between under-age youngsters, even mere sexual caressing, is now punishable by up to five years detention and placement on the sex offenders register.
Most parents do not want their children to have sex at an early age but if their children do have sex below the legal age of consent most parents equally would not want their child dragged to court, given a criminal conviction and put on the sex offender’s register, alongside child sex abusers - which is what sometimes happens under the present law in the UK and many other countries. This isn’t child protection; it’s a form of abuse.
That’s why we need to rethink the age of consent. Any review of the law should be premised on four aims. First, protecting young people against sex abuse. Second, empowering them to make wise, responsible sexual choices. Third, removing the legal obstacles to earlier, more effective sex education. Fourth, ensuring better contraception and condom provision to prevent unwanted pregnancies and abortions and to cut the spread of infections like HIV and hepatitis B and C.
If we want to protect young people, and I do, the best way to do this is not by threatening them with arrest, but by giving them frank, high quality sex and relationship education from an early age – before they become sexually active and before they develop unwise habits like unsafe sex. This early-years education should aim to empower them with the skills, knowledge and confidence to say no to unwanted sexual advances and to report sex abusers. For a nation that professes to be concerned about child sex abuse, it is truly shocking that so few schools educate their pupils about abuse issues. This needs to change.
Compared to the blanket criminalisation of sexually-active under-age youth, this empowerment strategy is a more effective way to protect young people from peer pressure and sex abusers.
Given that most young people now start having sexual relations around the age of 14, an age of consent of 14 might be more realistic and reasonable. If sex at 14 is consensual, and no one is hurt or complains, is criminalisation in the public interest? Is it in the 14-year-old's interest?
Another option would be to introduce a tiered age of consent, where under-age sex would cease to be prosecuted, providing both partners consent and there is no more than, say, two or three years difference in their ages. This tiered age of consent exists in Italy, Switzerland and Israel. It is designed to prevent the criminalisation of younger people of similar ages, while protecting the vulnerable from possible manipulation by those much older.
The issue is not whether the under-16s should have sex - I do not advocate early sexual activity - but whether they should be criminalised for consensual behaviour. Young people should be able to enjoy sexual relationships without being penalised by the law, providing sex is consensual and both partners are mature enough to understand the implications of their actions.
True, not all 14 year olds are mature enough to consent to sex, but some are. They should not face criminal sanctions.
In about 20 European nations, the age of consent is lower than 16. The minimum age (with some qualifications) is, for example, 13 in Spain; 14 in Germany, Austria, Portugal, Italy and the Vatican (where it was 12 until very recently); and 15 in France and Poland. There is no evidence that these lower ages result in more teen pregnancies, sexual infections or child abuse.
These countries - many of which are staunchly Catholic - would not have such low age limits if they thought young people were being put at risk. They rightly argue that the laws against rape and indecent assault provide adequate protection against undesired and coercive sex. .
The current of consent of 16 may make abuse more likely by reinforcing the idea that young people under 16 don’t have any sexual rights. It signals that no one below the lawful age is capable of making a rational, moral choice about when to have sex. This sexual disempowerment plays into the hands of adults who want to abuse them. Abusers exploit many young people’s lack of assertion of their sexual human rights, which includes their right to reject undesired sex.
There is a contradiction between the age of criminal responsibility and the age of sexual consent. Although the age of criminal responsibility is ten, the age of sexual responsibility is 16. People under 16 are deemed by the law to be incapable of giving sexual consent. The implication is that the decision to have sex is more serious, complex and difficult than a decision to commit robbery or rape.
The ten year old killers of James Bulger were deemed by the law to know what they were doing and be convicted of murder. But if they’d had consenting sex with each other, the courts would have ruled they were too young to know what they were doing – and therefore being incapable of giving their consent to a sexual act.
Since children can be held responsible for criminal behaviour from the age of ten, it’s surely illogical for the legal system to say that people below 16 are unable to consent to sex.
Guilt and shame about sex also increase the likelihood of molestation by encouraging the furtiveness and secrecy on which abuse thrives. The sex-negative mentality that sees sex as something private that should be kept out of sight plays into the hands of child sex abusers.
One way to protect young people against unwanted sexual advances is by promoting sex-affirmative attitudes that challenge the idea that sex is something sordid that should be kept hidden. Sexually unashamed young people are more likely to report abusers.
Another way is by empowering teenagers to stand up for their sexual rights, including both the right to say yes to sex they want and the right to say no to sex they don’t want. Sexually informed and confident youngsters are much more likely to resist unwanted sexual advances.
However, any lowering of the age of consent needs to go hand-in-hand with candid, compulsory sex education in schools, beginning with age-appropriate teaching from the first year of primary school. Then, from the age of 12, before they become sexually active, pupils should be given explicit advice on how to deal with sex pests, negotiate safer sex and sustain fulfilling relationships based on mutual consent and respect.
Criminalisation is dangerous because it can inhibit young people from seeking safer sex advice and condoms. It makes some youngsters afraid to report sexually abusive relationships. They fear getting into trouble because they have broken the law. Reducing the age of consent to 14 would remedy these problems, at least for those aged 14 and older.
An age of consent higher than the typical age of first sexual experience also discourages some teachers and youth workers from giving upfront sexual information to those under the lawful age of consent. They fear being prosecuted by the police, or sued by disgruntled parents, for aiding and abetting unlawful sexual acts. So they don't provide the necessary facts. Withholding sexual welfare advice is not protection. It is a form of child abuse.
It is true that sex can sometimes be dangerous and harmful to young people, but not always. At puberty, as hormones kick in, youngsters develop sexual feelings. This is perfectly natural and healthy. Many teens innocently and spontaneously explore and experiment at an early age. It is wrong to criminalise them. Counselling, advice and support is more appropriate and productive.
A minority of youngsters do, of course, end up pregnant or with sexual infections. Good quality sex education from an early age, including the provision of accessible contraception and safer sex advice, can help reduce the incidence of these negative experiences; ensuring that sex is a healthy, happy experience for both partners.
Despite what the puritans and sex-haters say, under-age sex is mostly consenting, safe and fun. It does not result in any damage. If there is harm caused, it is usually not as a result of sex per se, but because of emotional abuse within relationships and because of unsafe sex, which can pass on infections and make young girls pregnant when they are not ready for motherhood.
The message we need to give young people is that sex is fundamentally good - not dirty or shameful. It is a natural joy, immensely pleasurable and a profound human bond; resulting in intense shared fulfilment and much human happiness.
Providing it is safe and with mutual respect, consent and fulfilment, under-age sex involving youths of similar ages should not be stigmatised, let alone criminalised.
• For more information about Peter Tatchell’s human rights campaigns: www.petertatchell.net