A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
The Sunday Times carries a story this morning, featuring remarks from Professor John Ashton, President of the Faculty of Public Health. He’s being credited with arguing that the age of consent should be lowered to 15, and politicians have been asked the question throughout the morning as to whether they agree with this suggestion.
Should anyone bother to read the Sunday Times article (which, given it’s behind a paywall, many probably won’t), they will see that Professor Ashton suggests two things 1) we need a public debate about the age of consent and 2) ‘ we should seriously be looking at 15 so that we can draw a line in the sand and really, as a society, actively discourage sexual involvement under 15’. Saying we should seriously take a look at an option, is not the same as advancing that position. Ashton does however frame the debate in terms of a line, and I think that’s unhelpful.
Whenever these sort of stories involving aspects of sexuality feature win the media, the reaction can be fierce and lead to the story running over several days, or politicians sensing such potential, seek to swiftly close down the story. The rapid response from leading politicians, including the Prime Minister and Deputy prime Minister this morning, is to reject Professor Ashton’s first point (the need for a debate) and thus close down any specific age-based discussion. This feels like a story which is already losing momentum.
Yet, should we be so ready to close down this discussion? After all, the assumption that we, in these islands, are uniquely placed to have the right answer to age of consent laws when it differs so widely around the globe suggests a complacent arrogance. A debate is surely worthwhile, whatever view you might have. The NSPCC do seem to recognise this in their remarks this morning, although they dispute whether anything has ‘changed’ (which suggests there has been some sort of historic debate and settlement – and I’m not sure that is the case).
What’s the age of consent law for? Principally, it is to protect one group of individuals (here, a section of what legally we term ‘children’ – but not all children) from exploitation by another group of individuals (a combination of what the law terms children and adults). It assumes – like all age of consent based laws (driving, alcohol, smoking, marriage) – that there is a magical moment in time when we gain the skills and reason to make an informed judgment about a particular action. There is a point at which we trust you behind the wheel of a car and feel reasonably reassured that you won’t try and mow down your parents. There is an age that you are rational enough to decide to start a journey towards lung cancer by starting to smoke, and an age that you can consent to a sexual act.
The problem with the current law is that it criminalises those under 16 who we might culturally regard as having capacity to consent – even though legally, we do not deem such consent possible. To sweep away such age of consent laws would equally make it much more difficult to stop the exploitation and abuse of children by others. This is the quandary facing law-makers.
The debate therefore typically revolves around the issue of where to draw the line. Peter Tatchell has long argued that the age should be fourteen, and I have argued on this blog before that I find it just as problematic to pluck for the age of fourteen as it is to opt for fifteen or sixteen. I don’t have a confident answer to this dilemma.
I do however have a a suggestion that the debate does indeed continue and secondly, that rather than looking to simple ‘lines’, we look at ‘bands’. We need to look at ensuring that human beings are not sexually exploited by their fellow human beings, or in simple terms, that ‘children’ (however culturally and legally defined) are not sexually exploited by others. We also need to end the criminalisation of youth and have a law which better reflects the complexities around consent. Could we not therefore legally treat a fourteen year old engaging in sex with a sixteen year old differently from a fourteen year old engaging in sex with a twenty year old or a thirty year old? We could maintain the current ‘line’ at sixteen but introduce a ‘pre-sixteen’ band – to fourteen or even thirteen (we’d need to see the sexual health research on actual behaviours) which would protect those under sixteen whilst also ending their criminalisation. Let’s at least have the debate.