Tim Loughton MP wants each of any pair of unders who have sex to face criminal prosecution under the existing law. As I understand it, all persons have a human right to consensual sexual activity, so are the grounds on which these unders are deemed not to have that right going suddenly, at some time, to be similarly found untenable because this prohibition is founded on no more than the interest, inconvenience or embarrassment of adults?
For centuries, the law prohibiting sexual activity with children has operated on the basis that there is a certain age below which children cannot consent to sex. The statutory age of consent for heterosexual sex has gradually increased from 11 to 16 and this is also now the age at which consensual homosexual sex is legal.
Under the Sexual Offences Act it is an offence to engage in any sexual activity with a child under the age of 16, and the prosecution need not prove lack of consent.
It is a defence if the perpetrator reasonably believed that the child was 16 or over but only if the child was in fact 13 or over. For some offences, the penalties differ depending on the age of the perpetrator; except in the case of certain offences specifically relating to sexual activity with unders, the maximum sentence for a person who was under 18 at the time of the offence is five years' imprisonment, whereas for overs the maximum terms range between 10 years and life imprisonment.
The effect of the law is that if two year-olds engage in consensual sexual activity and each knows that the other is under 16, they will both be guilty of an offence carrying a maximum penalty of five years' imprisonment.
The concept of private life protected by article 8 of the European Convention on Human Rights includes a person's sexual life, so the criminalisation of consensual sexual activity is likely to amount to an interference with the right to respect for one's private life.
But article 8 is a qualified right, and interferences with it are permitted where necessary in a democratic society in pursuit of certain legitimate aims, including the protection of health and morals and the protection of the rights and freedoms of others.
In , the House of Lords considered the case of a year-old boy who was convicted of rape of a child under 13 after having sexual intercourse with a year-old girl whom he believed to be For the purposes of sentencing, the prosecution accepted that the girl consented and that she had said she was Neither of those factors amounted to a defence, however, because the offence is committed if a person intentionally penetrates the vagina, anus or mouth of another person with his penis and that other person is under The attitude of the victim towards the act is irrelevant, as is the perpetrator's belief as to the victim's age.
The defendant argued that this "strict liability" was incompatible with the presumption of innocence guaranteed by article 6 2 of the European Convention on Human Rights and that the decision to prosecute him with the offence of rape of a child under 13 carrying a maximum penalty of life imprisonment as opposed to the lesser offence of sexual activity with a child under 16 maximum five years' imprisonment for an underyear-old breached his right to respect for private life under article 8.
The House of Lords rejected both arguments. They noted that article 6 2 is concerned with the fairness of the proceedings, not the content of the criminal law. Since the prosecution still had to prove that the defendant had intentionally penetrated the victim and that she was in fact under 13, there was no violation of the presumption of innocence.
They acknowledged that the offence was one of strict liability but considered that, since the policy of the legislation was to protect children, it was justified. If you have sex with someone who is on any view a child, you take your chance on exactly how old they are. If they turn out to be under 13 then there is no unfairness in the fact that that amounts to a serious offence.
The judges were divided on the issue of article 8, but the majority decided that there could be no breach of article 8 in prosecuting the defendant for an offence of which he was admittedly guilty. Issues of consent, the age of the defendant and his belief as to the age of the victim could be taken into account at the point of sentence, and indeed in this case the defendant had been given a conditional discharge the second most lenient sentence available.
The prosecutor was not therefore obliged to opt for the lesser offence of sexual activity with a child under Nor was it unjustified to label the offence "rape". As Lady Hale put it, "the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from under-age sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. This is to protect children from themselves as well as from each other and from adults who may prey upon them.
They acknowledged, however, that there will be large variations in the blameworthiness of behaviour which is caught by one of the child sex offences in the act, and that the age of the perpetrator is a highly relevant factor in this. In many cases, there will be no reason to take any official action at all. In others, protective action by the children's services, whether in respect of the perpetrator or the victim or both, may be more appropriate.
They were obviously influenced by the fact that the prosecution had only accepted that the act had been consensual because the victim was terrified of attending court. In a case involving two truly consenting children of the same age it may still be possible to argue that a decision to prosecute, particularly if coupled with a heavy sentence, amounts to a disproportionate interference with their right to respect for private life.
But it is clear from the House of Lords decision that a blanket age of consent is not in itself incompatible with article 8, and indeed may be necessary in order to comply with the state's positive obligations to protect children from harm.