The “Higher” Age of Consent and the concept of Sexual Exploitation Professors Alisdair A. Gillespie and Suzanne Ost. Lancaster University Law School The age of consent in England is 16. Except it is not always. It is ordinarily the age of 16 but since 2000, there has been a higher age of consent (18) for certain sexual activities. Originally this was where there was thought to be a position of trust (Sexual Offences (Amendment) Act 2000), but it then was extended to other forms of exploitation, including prostitution and child pornography. This chapter will consider the issue of the higher age of consent and consider whether it is truly protecting children or whether it is an example of a paternalistic society governing what sexual activities a 16 or 17-year-old child can engage with and/or who their sexual partner is. After a critical exploration of the age of consent, an analysis will be made of the types of situations where the higher age is engaged and why it is not engaged in other exploitative contexts (such as employment). We will also consider whether the criminal law’s restrictions can be justified or whether they may infringe the older child’s right to a sexual identity. We then engage with philosophical understandings of the concept of sexual exploitation and consider what the crux of the issue (justifying criminalisation) should be. Ultimately, we will argue that a higher age of consent can be justified in the context of exploitative relationships, with the existence of exploitation being ascertained through a consideration of the circumstances of the relationship rather than the relationship falling under a definitive statutory list. Age of Consent A useful starting point is to consider what an age of consent is and what its purpose is. It is often said that the age of consent in England & Wales is 16 but that is not strictly true. The age varies depending on the particular relationship between the parties engaging in sexual activity. Indeed it is this variance which forms the discussion of this chapter. Consent? The term ‘age of consent’ is itself controversial and it has been suggested that what is created is an ‘age of liability’ for the offender rather than an age of consent.1 The context of this comment is that the age of consent arguably has little to do with consent and is instead the establishment of an age at which the law decides that a child is allowed to have sex. This is a point that is taken up by other commentators. Consent is ordinarily considered to be a concept that relates to self-determination,2 the right to make self-governing decisions about one’s life.3 It is the capacity of an individual to give 1 K. Walsh ‘Images of Childhood, Adolescent Sexual Reality and the Age of Consent’ in H. Gavin and J. Bent Sex, Drugs and Rock & Roll: Psychological, Legal and Cultural Examinations of Sex and Sexuality (2010, Inter- Disciplinary Press) 47-58 at 48. 2 In the context of medical law, see, for example, the much-quoted statement from Cardozo J. in Schloendorff v New York State Hospital (1914) 105 NE 92 that ‘… every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault…’, at 93. 3 J. Coggon and J. Miola, ‘Autonomy, Liberty and Medical Decision-making’ (2011) 70 Cambridge Law Journal 523-547 at 524. 1 permission to do something that makes their consent valid.4 In the context of sex, this would mean that they have the capacity to understand what sex is, what it means and the ability to decide whether they want to have sexual contact with another. However, capacity is a very subjective concept. It must vary between individuals because of their developmental differences. The significance of developmental capacity is reflected in the approach taken to consent to treatment and capacity in medical law when a doctor is faced with an older ‘Gillick competent’ child. In such a case, the status-based presumption that children lack capacity is rebutted provided the child can establish that she has the requisite maturity to possess decision-making capacity.5 The age of consent cannot therefore realistically relate to the capacity of an individual. As capacity will differ between individuals, so will the age at which they are capable of making that decision. This has been considered to create problems for the law because it means that a clear statement of rule cannot be set out – “you will not have sexual contact with a child under n years of age” – because, if it were based on capacity, that would not follow. Someone (n-2) may have the capacity to consent and yet someone else (n+3) may not. Of course, not everyone would agree that this is a problem. In the context of adult sexual assaults, there is similar variance. Different people will consent to different actions and thus an individual will need to ascertain that V consents before having sexual contact with him or her. Could it be said that the same should apply to some children? Is it not more appropriate that an individual wishing sexual contact with an adolescent6 should ascertain whether the child understands the nature of the activity, any potential consequence (eg STIs, pregnancy, loss of virginity, cultural or other societal factors) and ascertain their desire to connect sexually? The current age of consent does not do this and therefore it realistically moves us away from factual consent and instead steers us towards legal consent. The age of consent means that a person under the prescribed age cannot, as a matter of law, give consent, irrespective of whether they have the capacity to make that decision and the desire to do so. The law not only fails to recognise that decision, it prohibits this decision from being acted upon. Anyone who has sexual contact with that child will commit a criminal offence.7 However, although the age of consent is supposed to render factual consent irrelevant it does not always do this. So, for example, under English law a person commits the offence of rape of a child if he has sexual intercourse with a child under the age of 13.8 The offence is one of strict liability and it is therefore irrelevant whether the offender knew the age of the child or indeed whether the child gave factual consent. Whilst there is also the offence of rape,9 which applies irrespective of the age of the victim, theoretically there should be no need to use the offence where the victim is aged under 13 because proving the offence under s.5 is simpler. For the offence of rape under s.1, it is necessary to prove an absence of factual consent10 and also the 4 ‘Law makes the power of individual choice legally contingent on competence. The right to make decisions in matters such as marriage, contractual relations, voting, testamentary disposition, and health care depends on being legally competent.’ S. Stefan, ‘Silencing the Different Voice: Competence, Feminist Theory and Law’ (1993) 47 University of Miami Law Review 763-815 at 765. 5 See Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 and R (On the Application of Axon) v Secretary of State for Health (Family Planning Association intervening) [2006] EWHC 37 (Admin). 6 In this chapter we do not propose to discuss the idea that a child of any age can consent as we believe such argument is unarguable. Instead the discussion relates to children aged between 14 and 18 (14 being the youngest age often referred to as a potential age of consent). 7 See, most notably, the offences contained in ss.5-15, Sexual Offences Act 2003. 8 Sexual Offences Act 2003, s.5. 9 Sexual Offences Act 2003, s.1. 10 D.C. Ormerod and K. Laird Smith & Hogan’s Criminal Law (14th Edn, 2015: Oxford) at 852. 2 fact that D did not believe that V consented.11 Notwithstanding this fact and that the CPS charging guidance specifically states that s.1 should not be used,12 there have been occasions when the offence of s.1 has been used even when the victim is aged under 13.13 This would seem to suggest that even the law does not view the age of consent as being about consent but, rather, about the liability of the offender. By prosecuting rape, rather than the rape of a child, the law is admitting that factual consent is more important than legal consent and that the absence of factual consent is more serious than the absence of legal consent. There is logic to such a distinction but it does raise questions about whether this could create ‘classes’ of victims, especially if sentencing differs between the offences. This would be problematic where it was unclear whether a child factually consented meaning the prosecution would face a decision as to whether to accept a guilty plea in respect of the ‘lesser’ offence or to proceed to trial on the other. Identifying an age If, for simplicity, it is decided to have an age of consent (which is the pattern that most developed countries have adopted14) then the question becomes what age is chosen? And indeed how is that age chosen. The setting of the age of 16 as the (ordinary) age of consent in England & Wales occurred for reasons of political pragmatism rather than a considered societal response.