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

Document Cited authorities 4 Cited in Related
Vincent
Author
Published date01 May 2019
Date01 May 2019
Pages177-203
DOI10.3366/elr.2019.0548
INTRODUCTION

At present in Scotland, blanket criminalisation applies to all consensual sexual intercourse and oro-genital sexual activity between two older children, defined by statute as those aged thirteen to fifteen, through specific offences under section 37 of the Sexual Offences (Scotland) Act 2009.1 This provision reflects the Scottish Government's position that “the law should… make clear that society does not encourage underage sexual intercourse”.2 In creating this provision, the criminal law has therefore been used as a public policy tool for signaling the inappropriateness of sexual intercourse below the age of consent.3 This approach has been pursued in spite of the recognition that substantial numbers of older children in Scotland do, in fact, engage in consensual sexual intercourse.4 The result is that, at least theoretically, Scots law makes criminals out of significant numbers of older children involved in such activity in Scotland. However, even though the Scottish Government legislated to create specific offences explicitly criminalising older children for their consensual behaviour, this was accompanied by the intention that the provision was to be enforced discretionally and only rarely in practice.5 The indication is that older children will not actually be prosecuted unless there exists evidence of coercive or exploitative behaviour by one of the parties.6 The deliberate criminalisation of more behaviour than would likely be prosecuted in practice, and the ensuing reliance upon discretionary implementation of the provision by prosecuting authorities, is therefore the hallmark of the approach to regulating the consensual sexual behaviour of older children in Scotland.

The purpose of this article is to critically examine the current approach, in both theory and practice, to regulating the consensual sexual behaviour of older children in Scotland. 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 sound 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. In making this assessment the article will examine the normative principles and doctrinal legal discussions relating to criminalisation decisions, and integrate into this analysis relevant research on public health and adolescent psychological and neurological development. The final part of the article will conclude that the current Scottish approach of blanket criminalisation of older children accompanied by discretionary enforcement is wholly inappropriate and will argue that Scots law should move towards a revised offence with an element of exploitation which the prosecution should have to prove.

Investigation of this area of law is vitally important given that the law affects a large number of older children.7 Yet, given the topic's significance, the legal response to adolescent sexuality has been acknowledged as having received insufficient attention in legal scholarship generally,8 with a particular absence of research in the Scottish context.9 Principled objections to section 37 – and the approach of blanket criminalisation accompanied by discretionary enforcement –  were raised shortly after its introduction in a 2011 article by Chalmers, which compared the Scottish approach with similar, albeit more extensive, English and Welsh provisions under section 13 of the Sexual Offences Act 2003.10

This article makes a distinct contribution to scholarship in this area by reinvestigating the Scottish approach now that section 37 of the 2009 Act has been in force long enough to allow conclusions to be drawn in relation to the efficacy of the approach. This article will address a gap in the literature by evaluating for the first time both the theory and application of this law, including the rate of prosecution relative to the quantity of criminalised activity. In addition to building upon previous work on the principled objections to the current approach, this article will raise issues relating to its effectiveness and possible side effects that were hitherto unexplored in the Scottish context.

 CURRENT APPROACH The Law and the Enforcement Agenda

Section 37 of the 2009 Act creates two offences relating to older children who engage in penetrative sexual conduct or oro-genital contact with each other.11 It provides that where both A and B are older children, A will be guilty under section 37(1) of the offence of engaging while an older child in sexual conduct with or towards an older child if A engages in penetrative sexual conduct or oro-genital contact with B. If B engages by consent in the conduct in question, then B commits the offence under section 37(4) of engaging while an older child in consensual sexual conduct with another older child. A section 37 offence carries a maximum penalty of imprisonment for a term not exceeding ten years, and may result in the adolescent becoming subject to Sex Offender Notification Requirements.12

Prior to the inception of section 37 of the 2009 Act, sexual behaviour between older children was caught by the same miscellany of offences that would apply to an adult engaging in a “consensual” sexual act with a child.13 Section 37 therefore marked a change in approach as it contains specific offences explicitly criminalising older children. The result is that older children are subject to both more and less criminalisation than under the previous legal position. Section 37 is restricted to penile penetrative activity or oro-genital contact. In this respect the provision was regarded as progressive when it was introduced, because it actually decriminalised much conduct between older children which was formerly criminal.14 On the other hand, the new regime marked a more extensive approach to criminalisation as section 37 actually criminalised for the very first time a female older child who has sexual intercourse with a fourteen or fifteen year old boy.15

While sexual behaviour between older children was covered by the criminal law prior to the inception of the 2009 Act, there was little evidence of prosecutions being brought for consensual sexual activity between older children.16 With a traditional welfare-based approach to youth justice in Scotland, it was more likely that such behaviour would lead to a referral to the Children's Hearing System.17 Whether the criminal law should (continue to) apply to consensual sexual intercourse between two older children was a contentious issue when the law relating to sexual offences was codified under the 2009 Act. Both the Scottish Government and the Scottish Law Commission (SLC) agreed that acts such as kissing and sexual touching should be excluded from the criminal law.18 However, how to approach sexual intercourse between older children was a significant point of disagreement between the SLC and the Scottish Government.19

The SLC had initially intended, as set out in their discussion paper on sexual offences, that older children's sexual behaviour be covered by the criminal law in order to preserve the possibility of prosecuting children for consensual offences where there were elements of exploitation.20 However, it was subsequently concluded by the SLC that this was inappropriate, given that the effect of this would be to criminalise all older children who engage in consensual sexual activity.21 In its final Report, the SLC reversed its position and recommended that consensual sexual activity between older children should not be subject to the criminal law at all.22 Instead, the SLC recommended that there should be a new, distinctive non-offence ground of referral of a child to the Children's Hearings System – “that the child has engaged in sexual activity with another person or has been subjected to sexual activity with another person”.23 In recommending this position the SLC considered that sexual intercourse between consenting older children was not sufficiently serious as to warrant criminalisation, noting that “for many teenage children sexual experimentation is regarded as a normal part of growing up” and it “seems quite inappropriate to criminalise consensual activities which in themselves involve no discernible social wrong”.24 Presaging what was to become the approach under section 37 in Scotland, the SLC cautioned against a blanket criminalisation approach to adolescents' sexual behaviour such as that in England and Wales:

We are not impressed by the argument that such criminal liability would be theoretical only and in the vast majority of cases there would be no criminal prosecutions. Such an approach fails to take account of the possibility that older children might still be subject to investigation by the police, even if prosecution in the criminal courts is unlikely. More fundamentally, there is an important point of principle involved. If consenting sexual activity between young people is not to attract criminal liability, then the activity should not be criminal.25

The Scottish Government, however, insisted upon legislating to criminalise both older children.26 The rationale for the Scottish's Government's approach was, in essence, that section 37 was necessary in order to send a message to older children that engaging in consensual sexual intercourse is inappropriate, because of the harms that might result from that activity.27 The Policy Memorandum to the legislation was framed in terms of the need to ensure that “young people are mature...

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