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Against the Stream: lowering the age of sexual consent

  • Philip Graham (a1)
Abstract

Lowering the legal age of sexual consent would decriminalise a large number of ‘underage’ young people engaging in sexual intercourse. The arguments against such a change in the law are summarised and shown to lack validity.

Declaration of interest

None.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
Correspondence to Philip Graham (pjgraham1@aol.com)
References
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1Cohen, T. Prime Minister swiftly rejects top health experts call to reduce age of consent to 15. MailOnline; 18 November 2013.
2Family Planning Association. Fact Sheet: The Law on Sex. FPA, 2015.
3Home Office. Children and Families: Safer from Sexual Crime – The Sexual Offences Act 2003. Home Office Communications Directorate, 2004.
4Guangxing, Z, van der Aa, S. Trends of age of consent legislation in Europe: a comparative study of 59 jurisdictions on the European continent. N J Eur Crim Law 2017; 8: 1442.
5Graupner, H. Sexual consent: the criminal law in Europe and overseas. Arch Sex Behav 2000; 29: 415–61.
6Waites, M. The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan, 2005.
7Mercer, C, Tanton, C, Prah, P, Erens, B, Sonnenberg, P, Clifton, S, et al. Changes in sexual attitudes and lifestyles in Britain through the life course and over time: findings from the National Surveys of Sexual Attitudes and Lifestyles. Lancet 2013; 382(9907): 1781–94.
8Loewensen, P, Ireland, M, Resnick, M. Primary and secondary sexual abstinence in high school students. J Adolesc Health 2004; 34: 209–15.
9Thomson, R. ‘An adult thing’: young people's perspectives on the heterosexual age of consent. Sexualities 2004; 7: 133–49.
10Whincup, P, Gilg, J, Odoki, K, Taylor, S, Cook, D. Age of menarche in contemporary British teenagers: survey of girls born between 1982 and 1986. BMJ 2001; 322: 1095.
11Weithorn, L, Campbell, S. The competency of children to make informed treatment decisions. Child Dev 1982; 53: 1589–98.
12Steinberg, L. Does recent research on adolescent brain development inform the mature minor doctrine? J Med Philos 2013; 38: 256–67.
13Steinberg, L, Albert, D, Cauffman, E, Banich, M, Graham, S, Woolard, J. Age differences in sensation seeking and impulsivity as indexed by behavior and self-report: evidence for a dual systems model. Dev Psychol 2008; 44: 1764–8.
14Casey, B, Jones, R, Somerville, L. Braking and accelerating of the adolescent brain. J Res Adolesc 2011; 21: 2133.
15McCartt, A, Mayhew, D, Braitman, K, Ferguson, S, Simpson, H. Effects of age and experience on young driver crashes: review of recent literature. Traffic Inj Prev 2009; 10: 209–19.
16Public Health England. Sexually transmitted infections and chlamydia screening, 2016. Health Prot Rep 2017; 11(20).
17Office for National Statistics. Conceptions in England and Wales: 2014. ONS, 2016.
18Wight, D, Henderson, M, Raab, G, Abraham, M, Buston, K, Scott, S, Hart, G. Extent of regretted sexual intercourse among teenagers in Scotland: a cross-sectional survey. BMJ 2000; 320: 1243.
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BJPsych Bulletin
  • ISSN: 2056-4694
  • EISSN: 2056-4708
  • URL: /core/journals/bjpsych-bulletin
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Against the Stream: lowering the age of sexual consent

  • Philip Graham (a1)
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eLetters

Against the Stream: lowering the age of sexual consent

Jennifer Smith, Consultant Liaison Psychiatrist, Mersey Care NHS Foundation Trust
31 August 2018

I read with unease this Special Article by Philip Graham in the August 2018 edition of the Bulletin.

His counter arguments seem insufficient. He argues that existing law has had no effect on young peoples' sexual behaviour over the previous 50 years but doesn't take into account changing social, cultural and religious attitudes over that period. He references a survey of American school students who failed to cite the law as a reason for abstinence. However, conservative beliefs and promotion of abstinence before marriage are likely to be much more significant factors in the USA than in the UK. With respect to arguments about physical and physiological maturity, these seem largely irrelevant either way as these attributes bear no firm relationship to cognitive maturity.

Regarding cognitive and emotional maturity, whilst those aged 14 to 16 may be able to recognise the risks of sexual activity, as he points out himself, their ability to evaluate the risks can be compromised by other factors.1 Life experience and perspective are also imperative when making potentially life changing decisions; an extra 2 years in adolescence is a significant amount of time. Graham's assertion that the law is unlikely to be used as a reason to refuse consent seems speculative and even if only a small proportion feel empowered that is surely important.

In my opinion, the most worrying aspect of lowering the age of consent is the legalization of adults of any age having sexual relationships with children under 16. Consider a 50 year old with a 14 year old; it is obvious that the power dynamic is unhealthy even if the person isn't in a trusted position. Worse still is the risk of greater difficulties prosecuting cases of vulnerable children involved in prostitution, sex abuse rings or forced marriage.

We also have to consider children below 14. It is currently an offence for a person (A) aged 18 or over to intentionally engage in sexual touching of a child under 16. Where the child is aged 13 to 15, the prosecution must prove that A did not reasonably believe that he was 16 or over.2 If the age of consent was 14, presumably prosecutors would have to prove that A did not reasonably believe that he was 14 or over. Logically, that would likely lead to claims they thought children under 14 were at or above the age of consent.

To address Graham's arguments in favour of lowering the age of consent, he himself points out that where both parties are below the age of consent there is little likelihood of prosecution. There is also no current reason why 14 to 16 year olds can't access sexual health services as is made clear by the NHS.3 Similarly, sex education is already compulsory from the age of 11.4

In conclusion, I see no compelling argument to lower the age of consent; we should instead be taking inspiration from other countries like France that are strengthening their existing inadequate laws.

References

1. Steinberg L. Does recent research on adolescent brain development inform the mature minor doctrine? J Med Philos 2013; 38: 256-67.

2 Sexual Offences Act 2003

3 https://www.nhs.uk › Live Well › Sexual health

4 https://www.gov.uk/national-curriculum/other-compulsory-subjects

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Conflict of interest: None declared

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Even more against the stream

Lachlan Campbell, Consultant Psychiatrist, Blackfriars Medico-Legal Consultancy
31 August 2018

We all know the law is an ass, but when it comes to defining an age of consent it is more like a badly-assembled chimera. You can become criminally responsible at the age of 8 or 10, liable to criminal prosecution from the age of 12, legitimately have sex at the age of 14 whilst on holiday in Germany, join the Army at 16 and perhaps later die for your country, vote and purchase alcohol or cigarettes at the age of 18 but not hire a car until the age of 25. What an Alice in Wonderland world we live in! Logic would suggest a similar age for all of these activities, perhaps with some allowance for variation justifiable by the extent of risk involved.

The appropriate legal age of sexual consent is not immediately obvious. However as sexual intercourse with a child under the age of 13 amounts to statutory rape, this might provide a logical starting point. Incidentally, when I last checked, the lowest age of sexual consent in a European country is actually 12 (at Vatican City, somewhat ironically).

Of course in reality the limited availability of parliamentary time will make a logical alignment of the various ages for consent a complete non-starter. So perhaps a better question is "Why have an age of consent at all?" This allegedly offers protection but in reality mainly just criminalises a substantial proportion of the juvenile population and potentially even criminalises an under-age victim of a sexual assault. Surely criminal responsibility should only rest with the perpetrator? In this scenario, a perpetrator would commit a crime if, and only if, a sexual act occurred in the absence of consent, and not simply by reason of some arbitrary age. Can we not trust our children to reach their own decisions and just make consent, or rather lack of consent, the sole reason for engaging criminal law?
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Conflict of interest: Religious affiliation: New Age.

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