Regulating Consensual Sexual Behaviour between Older Children: The Case against the Current Approach under the Sexual Offences (Scotland) Act 2009

Abstract

The purpose of this article is to critically examine the current approach to regulating the consensual sexual behaviour of older children in Scots law. At present, blanket criminalisation applies to all consensual sexual intercourse and oro-genital sexual activity between two older children, defined by statute as those aged 13 to 15, through specific offences under section 37 of the Sexual Offences (Scotland) Act 2009. The first part of this article will describe the nature of, and background to, section 37. This will then be contextualised against the evidence of the relatively widespread occurrence of sexual intercourse amongst older children, and the very limited number of prosecutions under the provision in practice. While acknowledging that there are clear reasons to encourage older children to delay their first sexual experiences, the second part of the article will use an inter-disciplinary approach to show the extent to which the current criminal law approach is genuinely problematic. This is in terms of its conformity to rule of law principles, possible adverse social consequences and potential ineffectiveness. The final part of the article will conclude that the current approach in Scotland is wholly inappropriate, and that a more appropriate approach would be for Scots law to move towards a revised section 37 offence which incorporates an element of exploitation which the prosecution should have to prove.

Romeo & Juliet Laws: Investigating UK Public Perceptions of Young Consensual Sex and the Effects of Age Gaps and Perpetrator and Respondent Gender

“…While attention needs to be paid to address unrecognised female crime, the most prevalent cohort suffering here is young males who engage in consensual sex with similar aged partners, yet face the same consequence of sex offender registration and accompanying social and personal problems as their much older 'predatory' counterparts (Tewksbury, 2005). Implementing a well monitored 2-year sexual consent age span as supported above, would both mitigate this issue and bring the UK in line with other legislations that have already recognised and rectified this issue (Bierie & Budd, 2016;Callander, 2019;Essack & Toohey, 2018).…”

“…It is acknowledged that criminalising consensual sex is intended to protect against longer term adverse psychological consequences, however there is question as to how a criminal record and the associated ramifications can be reasonably argued as less harmful to adolescents than engaging in consensual sex (Callander, 2019). Additionally, ignoring the younger person's consent automatically labels them a victim whether they perceived themselves this way or not, which is problematic given the damaging social and psychological effects of the victim label, such as social stigmatisation, self-perceptions of weakness, and potential secondary victimisation (Fohring, 2018).…”

“…Many legislations, including 34 American states, Canada, Republic of Ireland (ROI), and South Africa, have adopted the concept of age spans into their laws to decriminalise the large number of young people engaging in sex with someone close to their own age (Bierie & Budd, 2016;Callander, 2019;Essack & Toohey, 2018). When exploring age spans in research, condemnation ratings significantly decrease when the age gaps between perpetrator and victim decrease, specifically as a function of perpetrator ages decreasing and victim ages increasing (Koon-Magnin, 2013), with harsher judgements such as prison recommendation, when age gaps are larger (i.e., 7 years vs. 3 years) (Comartin et al, 2014).…”