Sexual Offences Bill Briefing
House of Commons Committee Stage
Introduction
This briefing sets out Brook’s concerns about the treatment of consensual sexual activity within the Sexual Offences Bill.
Brook is the country’s leading provider of free, confidential sexual health advice and contraception for the under 25s. The organisation works with more then 100,000 young people each year through its network of centres across the UK, and has contact with many more through the national Young People’s Information Service and a growing number of innovative outreach projects.
Whilst Brook broadly welcomes the Bill and its intention to protect young people and vulnerable adults, we are very concerned about certain aspects of the Bill in relation to consensual sexual activity between young people under the age of 16 (see below).
Brook welcomes the amendments the Government made to Clause 15 of the Bill during its passage through the House of Lords and the clarification that the services provided by organisations such as Brook could not be interpreted as facilitating a child sex offence.
In the second reading debate in the House of Commons it was recognised by MPs from all parties that consensual sexual activity amongst young people is a normal part of human development that should not be criminalised and there was a commitment to examine this matter during the Committee Stage.
Consensual sexual activity between young people
Brook’s main area of concern is Clause 14, Child sex offences committed by children or young persons, which takes no account of consensual sexual relationships between young people of a similar age. Although it has been argued that the Bill is simply maintaining the status quo with regard to sexual activity amongst under 16s, the definition of sexual activity, and specifically touching, within the Bill is far more overt than previous legislation and effectively criminalises activities which are currently not perceived to be illegal, either by young people or the professionals who work with them.
Brook is not advocating a reduction in the age of consent. This would be a significant change which would require careful thought and consultation with both young people and other stakeholders (especially as research implies that the majority of young people do not want the age of consent to be lowered or removed).1
Consensual sexual activity between young people of a similar age must be clearly distinguished from sexually abusive behaviour; there has been a worrying tendency to conflate the two issues during debate. Neither is it appropriate to treat genuinely and mutually agreed activity between people of a similar age as a matter of child protection. This can be as traumatic and as unnecessary as criminal proceedings.
What Brook would like to see is the Bill amended so that consensual sexual touching between young people of a similar age, which falls short of penetration, is not defined as a criminal offence. From our extensive work with young people, we know that exploratory touching is a normal and healthy part of sexual development. Research shows that almost 35% of girls and more than 55% of boys will have had some form of ‘sexual experience’ short of intercourse before they reach the age of sixteen. 2
We are not convinced that this matter is best addressed through guidance to police and prosecutors as Ministers have argued. Young people are already surrounded by mixed messages about sex and this approach would create confusion about what is and is not permissible. Moreover, it leaves young people exposed to the risk of criminal liability and the trauma associated with that. There must also be concern that even if the CPS decided there was no case to answer there remains the potential for civil actions pursed by aggrieved parents, for instance.
Brook’s experience (consistently borne out by research) is that young people under 16 can be very reluctant to seek the support they need because of worries about confidentiality and anxiety about being judged, often driven by concerns about the legality of their actions. A classic example would be a 15 year old girl who is pregnant but doesn’t tell anyone because she is worried that her boyfriend will get into trouble and, by the time she visits a Brook clinic, either her pregnancy is too advanced for a termination, should she wish to have one, or she has not received appropriate care in the early stages of pregnancy.
Brook’s anxiety is that if ‘normal’, consensual sexual touching in this context is criminalised, young people will be reluctant to discuss these activities and seek advice on safe sex from professional sources. There will be a greater reliance on advice from other young people – often a source of mis-information - and this is likely to result in unintentionally risky behaviour, potentially resulting in unplanned pregnancy or STIs. Furthermore, if there is no differentiation between sexual touching and full penetrative sex in the eyes of the law, young people may be more willing to experiment with early penetrative sex.
Any law that potentially creates confusion, forces normal sexual activity ‘underground’ and creates barriers to young people accessing sexual health information and services would be enormously damaging and will potentially increase the very problems that the Government’s sexual health and teenage pregnancy strategies aim to address.
Brook is currently working with a coalition of children’s charities and the Children’s Legal Centre to develop a ‘package’ of amendments to clauses 1 to 14 which will address Brook’s concerns regarding consensual activity which falls short of penetration and also other organisations’ concerns regarding the issue of consent – and capacity to consent – and the separate issue of treatment of young offenders within the context of this Bill.
1. NOP opinion survey on the age of consent for Brook and Stonewall, 1999
2. K Wellings et al, Sexual Behaviour in
