Regulating Consensual Sexual Behaviour between Older Children: The Case against the Current Approach under the Sexual Offences (Scotland) Act 2009
Author | |
DOI | 10.3366/elr.2019.0548 |
Published date | 01 May 2019 |
Date | 01 May 2019 |
Pages | 177-203 |
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.
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.
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.
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.
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.
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.
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.
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.
The Scottish Government, however, insisted upon legislating to criminalise both older children.
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