We fully support the Bill. It provides equal protection and equal treatment for all young people. We welcome the provisions on abuse of trust and are pleased that, for the first time, young women aged between 16 and 17 will be protected from sexual exploitation from older men in a position of authority.
This briefing analyses the legal background, current research findings, international comparisons, the views of child care organisations and opinion poll evidence on the Bill.
We appreciate that there are deeply held opinions on both sides. However, we believe that the debate in the House of Lords must be well informed by the evidence. In particular, we hope that the voices and experience of all the child care organisations, together with responsible medical opinion, will not be lightly set aside.
When the Bill was last before the Lords, there were many who felt that any changes to the age of consent must be balanced by new measures to protect all young people. At the end of the day, it is a matter of balancing those principles and the new Bill strikes that balance.
I hope you will be able to support it.
(signed) Angela Mason
Working for lesbian and gay equality
Our present law is the law of the intolerant and it has a bullying element. For those who are homosexual, it is a law that encourages not meaningful relationships but clandestine behaviour, fear and isolation...we have the opportunity to end the persecution and let prejudice give way to reason, evidence and principle. Historians will look back at this period of discrimination against young people with the same opprobrium with which we now look back on those who sought to justify the slave trade. Historians will simply as: "how could they go on justifying something that was so patently unfair and unjust?
...whatever our faith, we have the opportunity to show our humanity, to nudge our awareness, to encourage meaningful relationships for those who are homosexual but have the misfortune to be between 16 and 18. We have the chance to bear witness, to show our maturity, and to make our country better, more tolerant and a more understanding society.
One of my regrets about the whole debate is that no image is given to homosexual young people as to how they might constructively lead their lives...Of course there are people who are ambivalent and uncertain in their teenage years. Some people are ambivalent and uncertain throughout their lives. Those uncertainties about identity can be just as strong for young heterosexual people. It is amazing how often in the debate one can say: "and this would be the same for heterosexual people". We load on to that minority a burden of moral responsibility, a burden of pressure from society, yet hardly seem to pay attention to the immoralities of heterosexual people, the abuse of children by heterosexual people, and the abuse in families by heterosexual people of young children.
I cannot help but feel that there is a scapegoating procedure going on, which is not new in history, and not new in our society
Although the rationale for the law is the 'protection' of young men, the younger man is also guilty of an offence and risks up to 2 years in prison. In the case of heterosexual or lesbian offences, the younger person is seen as a victim and does not commit an offence.
The maximum penalty for homosexual age of consent offences (i.e. consenting behaviour involving 16-17 year olds) is 5 years imprisonment where the accused is aged 21 or over, and 2 years imprisonment where the accused is under 18.
Homosexual buggery and gross indecency remain offences if they are treated as not in private i.e. if more than two people are present, or the act takes places in a public lavatory.
The Review consulted widely with all childcare and youth organisations. The recommendations arising from the Review are incorporated in the new Bill.
I should like to suggest to the Government that they should take the amendment back and bring forward their own Bill to reduce the age of consent to 16...It would give us an opportunity to get the legislation in the right form and a form which...would perhaps be more easily interpreted and workable.
Responding to these concerns, and following the recommendations of the Review on abuse of trust: the Government has introduced the Sexual Offences (Amendment) Bill.
The new Bill had its Commons Second Reading on 25 January 1999, and passed with a majority of 183. Clause 1 of the Bill, dealing with an equal age of consent, was considered by a Committee of the Whole House, and passed with a majority of 204. Clauses 2-5, dealing with abuse of trust, were debated in Standing Committee, of which Joe Ashton MP was a member. The Bill received its Third Reading on 1 March 1999 and passed with a majority of 199 (281 votes to 82).
No abuse of trust offence is committed where, before the commencement of this Act, there is a pre-existing relationship between the parties.
Penalties for abuse of trust are six months imprisonment and/or a statutory maximum fine (currently £5000) on conviction in a magistrates court. On conviction at the Crown Court, the maximum penalty is five years imprisonment, an unlimited fine, or both.
Stonewall supports all parts of the Bill.
It provides equal treatment and equal protection for all young people.
It provides equal treatment and equal protection for all young people.
Childline has learnt from listening to children, and we should learn from listening to young people. If
we believe in learning and listening we would do well to study the considerable volume of work by
those charities working in the field of child protection. It is significant that the National Society for
the Prevention of Cruelty to Children supports an equal age of consent saying:
"In our view there should be equality because continuing criminalisation in law against homosexuals
stigmatises young people growing up gay, hinders them from developing a positive self image and
prevents them from seeking information and help in coming to terms with their sexuality"
"In our view there should be equality because continuing criminalisation in law against homosexuals stigmatises young people growing up gay, hinders them from developing a positive self image and prevents them from seeking information and help in coming to terms with their sexuality"
The views of the NSPCC are supported by all the major child care and youth charities. They include Save the Children, Barnardos, NCH Action for Children, the National Children's Bureau, the British Youth Council, the National Youth Agency (representing local authonty youth services, girl guides and scouting organisations), the Family Welfare Association, and the Health Education Authority.
NCH ACTION for Children supports the Sexual Offences (Amendment) Bill. We believe that the age of consent should be the same for all young people, regardless of gender or sexual orientation, and that 16 is the appropriate age for this to be set. We believe this must be against a context in which there are both safeguards against the abuse of trust, as in the Bill, and in which sensitive age- appropriate advice and information is available to all young people about sexual and personal relationships.
Barnardos work with some of society's most vulnerable young people, many of whom have had the
most destructive life experiences, little family support and the least access to good sex education. We
aim to help young people take responsibility for themselves in all areas of their lives, and we are
particularly committed to helping them cope with relationships and understand the risks of HIV.
While the age of consent is different for homosexual and heterosexual young people, we are unable
to work in a full and frank way with young people who are gay, or who are struggling to work out
their sexual identity. Far from protecting them the current law makes young men more vulnerable
and alone at an age when they most need social support.
While the age of consent is different for homosexual and heterosexual young people, we are unable to work in a full and frank way with young people who are gay, or who are struggling to work out their sexual identity. Far from protecting them the current law makes young men more vulnerable and alone at an age when they most need social support.
All responsible childcare organisations support an equal age of consent. Their experience should not be ignored.
In all the debates on the age of consent, there is a strong sexual double standard. Young boys are regarded as more vulnerable than young girls. Thus in 1994 Lady Young said:
... if a 16 year old girl has heterosexual relations, the worst that can happen to her is to have a baby. She could lose her heart to an unsuitable man and she may be very unhappy. But there is nothing to stop her going on to have a happy marriage, children, and to live a normal life. What is so tragic for the 16 year old boy is that if he becomes entangled with homosexuality, he denies himself forever the opportunities for marriage, children and a normal life.
Lord Longford echoed these sentiments in 1998:
If someone seduced my daughter it would be damaging and horrifying, but not fatal. She would recover, marry and have lots of children. If some elderly schoolmaster seduced one of my sons and taught him to be homosexual, he would ruin him for life. That is the fundamental distinction. A girl is not ruined for life by being seduced. A young fellow is.
There were some 9,000 pregnancies involving girls under the age of sixteen in 1996, of which half were aborted, according to statistics from the Brook Advisory Centre. To minimise the consequences of unwanted teenage pregnancies and abortions demonstrates a sexual double standard that is simply unacceptable.
One homosexual experience does not ruin a young man's life, or mean that he will inevitably follow a homosexual lifestyle. Indeed, it can be argued that the consequences for a young girl - becoming pregnant, perhaps having an abortion - are far more serious than the consequences of one homosexual experience.
To suggest that being gay will ruin a young man's life is demonstrably untrue. There are many examples in public life of gay men who lead valued, successful and open lives. Many people know gay men who have tried to be heterosexual, who have married and had children - and know the pain that, in many cases, it has caused to all parties.
We believe that it is simply unacceptable to suggest that it is less serious for a young girl to have an unwanted pregnancy, than for a young boy to have a gay relationship.
Only recently has it been possible for young gay men to speak for themselves. Their testimony does not show that they are seduced into homosexuality. The overwhelming majority of young gay men are aware of their sexual orientation before 16 and seek partners of their own age.
In considering the evidence the British Medical Association said:
...most researchers now believe that adult sexual orientation is usually established before the age of
puberty in both boys and girls.
The purpose of age of consent legislation is to protect vulnerable young people from sexual
exploitation and abuse, but there is no clear justification for a differential age for homosexual male
activity and other sexual activity. Unwelcome sexual attentions of a seriousness warranting criminal
prosecution are equally offensive whether the victim is a man or a woman: the same law should
therefore apply to all.
The purpose of age of consent legislation is to protect vulnerable young people from sexual exploitation and abuse, but there is no clear justification for a differential age for homosexual male activity and other sexual activity. Unwelcome sexual attentions of a seriousness warranting criminal prosecution are equally offensive whether the victim is a man or a woman: the same law should therefore apply to all.
No doubt there are some people who feel attraction to both sexes, but this cannot be an argument for using the criminal law to try and punish young men who may have these feelings.
A young man of 16 can marry. He can father a child. He can join the armed forces. The thing he can't do is have a gay relationship.
If the law considers that young men are mature enough to start a family, even to die for their country, how can it be held that they are too immature to have a relationship with another man?
Funded by the Department of Health and the Medical Research Council, in 1993 the SIGMA project published a major longitudinal study of homosexual and bisexual men. They found that:
The Royal College of Psychiatrists has also rejected developmental arguments for an unequal age of consent. They, together with the Association of Family Therapy, and the Association of Educational Psychologists, support an equal age of consent.
The criminal law cannot make people heterosexual. It is cruel and unjust to punish one group of young people because their sexuality is different.
In the many debates on the age of consent, people on both sides of the argument have often talked about "messages". Of course, the law is declaratory, but the issue here is not just the message but whether young men between the ages of 16 and 17 should be arrested, prosecuted and subject to two years imprisonment if they have a gay relationship.
When the Wolfenden Report recommended a different age of consent for homosexuals in 1957 they justified a higher age of consent, not on medical evidence which they said, 'supported the view that the main sexual pattern is laid down early in life', but because they believed that young men should be actively discouraged from choosing a way of life which 'might have the effect of setting them apart from society'.
This is a circular argument. It relies on prejudice to justify prejudice. The unequal age of consent itself sets young gay men apart from society. That is why we oppose it.
In fact the lives of adult lesbians and gay men have improved enormously. The Rt Hon. Chris Smith MP, the Rt Hon. Nick Brown MP and Angela Eagle MP now serve as openly gay Government Ministers. Their sexuality is simply not an issue. It is quite untrue, therefore, to suggest that being openly gay condemns a young person to live 'apart from society'.
Enforcing age of consent laws against young homosexuals is not an operational priority for the police. Those who support the present law do so solely on the grounds that it 'sends a message' to society about homosexuality. We believe that the criminal law must be clear and enforceable, not vague and admonitory.
Nor is there any evidence that the unequal age of consent for homosexuals does anything to protect young gay men. In a debate initiated by Lord Tope (6 October 1998) on bullying in secondary schools, Lord Tope said:
The law about the age of consent, which some claim is there to protect youngsters, appears
sometimes to do exactly the reverse. A young man from Haringey wrote to me:
"During this period I was raped by a man. But because I was under the age of consent, at the age of
sixteen, I thought that if I told anyone I would be arrested and put into prison. And so I did nothing".
"During this period I was raped by a man. But because I was under the age of consent, at the age of sixteen, I thought that if I told anyone I would be arrested and put into prison. And so I did nothing".
The present law discourages young gay men from reporting abuse, being open with their family, and seeking appropriate advice and support.
The message that the law gives is that homosexuality is wrong and that gay men are less valued in our society.
It is no wonder then that homophobic violence, bullying and abuse still flourish, and it is young gay men and lesbians who suffer the most.
The Stonewall survey on homophobic violence found that 48% of respondents under 18 had experienced a violent homophobic attack in the last five years. 40% of these attacks took place in school.
Stonewall, 1996. Queer Bashing: a national survey of hate crimes against lesbians and gay men.
In a national survey of secondary schools, 82% of the teachers said that they were aware of homophobic abuse in their schools, and 26% said they were aware of physical attacks in their schools which were motivated by homophobia.
Institute of Education, Health Education Research Unit, 1998. Playing it Safe.
A survey of language amongst British 13-year-olds found that their favourite terms of abuse are 'gay' and 'poof'.
Institute of Education, 1998. Youth Language: What Young People Are Saying.
Save the Children have said:
The discriminatory age of consent encourages intolerance and prejudice which can seriously affect
the lives of young hornosexual people. There is considerable evidence pointing to high levels of
attempted suicide, family rejection, bullying and intimidation of this group of young people.
The protection of young people is best maintained by the consistent and fair application of the law,
rather than legislation which is both hard to justify and damaging in its application.
The protection of young people is best maintained by the consistent and fair application of the law, rather than legislation which is both hard to justify and damaging in its application.
Of course, those who argue in Parliament for an unequal age of consent, would not personally condone bullying. But they must take on board the evidence of violence and abuse against homosexuals, and consider carefully how their message is being received by society.
Criminalising young gay men sends the wrong message to society. It helps legitimate unacceptable prejudice and bigotry.
|Belgium||16 (#2)||16 (#2)||16 (#2)|
|Italy||14/16 (#3)||14/16 (#3)||14/16 (#3)|
|Netherlands||16 (#4)||16 (#4)||16 (#4)|
|Portugal||16/18 (#5)||16/18 (#5)||16/18 (#5)|
|Spain||12 (#6)||12 (#6)||12 (#6)|
|United Kingdom||16 (#7)||16 (#7)||18|
|#1 -||it is illegal for a male over 19 to commit homosexual acts with a male between 14 and 18|
|#2 -||heavier penalties are levied against those in authority|
|#3 -||if one of the participants is an older family member or guardian, the age of consent is 16|
|#4 -||if a person between the ages of 12 and 16 commits a sexual act with another person between those ages, they will not be prosecuted unless there is a complaint from the other participant, a parent or a guardian. However, if a person over 16 commits a sexual act with a person under 16, they will be liable for prosecution regardless of whether or not a complaint has been made.|
|#5 -||it is illegal for a person aged 18 or over to commit sexual acts with a person under 18|
|#6 -||there is no statutory age of consent. In general, consensual sexual relations are not penalised from the age of 12, although a person aged over 16 who has sex with a person abed between 12 and 16 may be liable to prosecution|
|#7 -||17 in Northern Ireland|
In the Commonwealth, including Canada, New Zealand, South Africa and most Australian states, there is also a common age of consent.
Speaking in 1994, Tony Blair MP said:
The point that has been made about other countries is not that we should follow what happens in other countries, or that the fact that the majority of other countries in Europe do not discriminate should mean that we necessarily blindly follow their path; it is...that there is no evidence to suggest that any of the adverse consequences forecast as attending a move to equality here, have happened in those countries - none, not a single shred of evidence, not anywhere.
There is absolutely no evidence to suggest that any of the dire consequences predicted by opponents of this Bill have happened in these countries.
The argument for an equal age of consent concerns issues of human rights. The question is whether the fundamental rights set out in the European Convention on Human Rights should be enjoyed equally by homosexuals.
The European Convention on Human Rights was adopted after the Second World War to
ensure that those minorities who suffered so terribly under fascism - the Jews, the mentally
ill, the disabled, and indeed homosexuals - should, in future, be protected by agreed
international standards of human rights.
In the case of Euan Sutherland, a young gay man who challenged our unequal age of consent laws in the European Court, the European Commission of Human Rights has already condemned our laws as a violation of Article 8, which provides for the right to privacy, and Article 14, which provides that the rights set out in the Convention are to be enjoyed by all citizens without discrimination.
The Commission said:
... as was conceded in the Parliamentary debates, current medical opinion is to the effect that sexual
orientation is fixed in both sexes by the age of 16 and that men aged 16-21 are not in need of special
protection because of the risk of being 'recruited' into homosexuality.
Moreover, as noted by the BMA (British Medical Association), the risk posed by predatory older
men would appear to be as serious whether the victim is a man or woman and does not justify a
differential age of consent.
Even if, as claimed in the Parliamentary debate, there may be certain young men for whom
homosexual experience after the age of 16 will have influential and potentially disturbing effects and
who may require protection, the Commission is unable to accept that it is a proportionate response
to the need for protection to expose to criminal sanctions not only the older man who engages in
homosexual acts with a person under 18 but the young man himself who is claimed to be most in
need of such protection.
Moreover, as noted by the BMA (British Medical Association), the risk posed by predatory older men would appear to be as serious whether the victim is a man or woman and does not justify a differential age of consent.
Even if, as claimed in the Parliamentary debate, there may be certain young men for whom homosexual experience after the age of 16 will have influential and potentially disturbing effects and who may require protection, the Commission is unable to accept that it is a proportionate response to the need for protection to expose to criminal sanctions not only the older man who engages in homosexual acts with a person under 18 but the young man himself who is claimed to be most in need of such protection.
Dealing with the moral objections to homosexuality they stated very clearly:
As to society's claimed entitlement to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle...the Commission cannot accept that this could in any event constitute an objective or reasonable justification for inequality of treatment under the criminal law.
Euan Sutherland v. United Kingdom, Application No. 25186/94, 1 July 1997
Article 1 of the UN Universal Declaration of Human Rights states: "All human beings are born free and equal in dignity and rights". All citizens and all young people have a right to be treated equally under the law.
Much has been made on both sides about public opinion. Tn our view the public are concerned about two issues - fairness and protection. There are many polls which show that public opinion does not support discrimination against lesbians and gay men.
In 1992, 74% said the age of consent should be the same for everyone, irrespective of their gender or sexual orientation (Harris).
Three Harris polls show that people gcnerally believe that lesbians and gay men should enjoy the same rights under the law. In 1991, 65% supported this statement, and in 1995, 74% were supportive.
A Guardian/ICM poll in 1996 asked whether a "declared homosexual living in a stable relationship with a partner" should be allowed a job in certain professions. The following percentages answered yes:
One issue that emerged during the last debate in the House of Lords was whether or not homosexuality could be seen as in any way equivalent to heterosexuality. Speaking in the debate in July 1998, Lady Young said:
It is said that this whole issue is one of equality. I do not myself believe that there is a moral equivalence between heterosexual and homosexual relationships...I believe it is a very doubtful argument to bring equality into this issue at all. In many respects it simply does not apply. We are not talking about equal things."
Perhaps surprisingly, public opinion does not support this view. In two polls taken after the House of Lords rejected equalising the age of consent, the majority of the public said that they thought homosexuality was morally acceptable:
It is also clear from these opinion polls that this is a generational issue. Younger men and women, regardless of class or region, are much more likely to support homosexual equality.
The age of consent, however, raises particular concerns about the protection of children. The new Bill, of course, provides additional protection for young people between the ages of 16 and 17. These protections are likely to command public support.
Homosexuality does not cause HIV and AIDS. The HIV virus causes AIDS.
94% of the 33.4 million people infected with HIV live in sub-Saharan Africa, North Africa, the Middle East, South and South East Asia, East Asia, the Pacific region and Latin America.
Several factors point to the fact that unprotected vaginal intercourse is responsible for the vast majority of HIV and sexually-transmitted infections (STIs) in developing countries. These include high rates of vaginal rather than anal STI's, and roughly equal proportions of male and female infections in Africa. Up to 40% of pregnant women are HIV positive in some southern African urban centres.
In many of these countries homosexuality is highly stigmatised and often completely illegal, but this has had no effect on the prevalence of HIV transmission.
There appears to be no one factor which can explain patterns of HIV transmission across the world, but all expert medical opinion and health promotion experts agree that:
The unequal age of consent makes this work more difficult. The British Medical Council have said:
The age of consent for homosexual men should be set at 16 because the present law may inhibit efforts to improve the sexual health of young homosexual and bisexual men.
The All-Party Parliamentary Group on AIDS recently conducted a wide-ranging hearing on a national HIV/AIDS strategy (October 1998). Their report contains a number of detailed recommendations but, in relation to HIV prevention and health promotion, it says:
Effective health promotion strategies work best in a supportive and open climate. The evidence presented to the hearing made clear that barriers to such a climate were perceived to include the unequal age of consent for homosexual men.
Homophobia and tolerance of people with HIV and AIDS are closely related. It is so important to reduce levels of discrimination because we can then give people more confidence in self-referring for care, treatment, and advice which can influence their risk of acquiring or transmitting HIV.
Professor Pamela Gillies, Health Education Authority
It is clear that there is a body of religious opinion that regards any expression of homosexuality as wrong and sinful. We believe that, in a pluralistic society, everyone is entitled to their views and we accept, of course, that there are differences in those points of view.
Within most religious faiths, adultery is regarded as wrong and this view is supported by the majority of the population. Yet no one argues that adulterers should be treated as criminals.
In our society there is an important distinction between the criminal law and private morality. It is a distinction that was drawn by the Wolfenden Report and, at the time, was supported by the Church of England. Wolfenden said:
Unless a deliberate attempt is to be made by society, acting through the agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private rnorality and immorality which is, in brief and crude terms, not the law's business.
When the age of consent was debated in the House of Lords last summer, the Bishops of Oxford, Bath & Wells, and Lincoln, voted for equalisation. This is an issue where there are legitimate differences of opinion even within one religious faith.
Cardinal Hume has said:
The Church does not expect that acts that are morally wrong should, by that fact alone, be made
The legislature has to rnake a prudential judgement as to whether or not the common good of society
is best served by a further decrirninalisation of homosexual genital acts, even those that are morally
unacceptable. The law should always seek to protect young people and promote moral values that
society recognises as wholesome. I urge Parliament to be cautious.
The legislature has to rnake a prudential judgement as to whether or not the common good of society is best served by a further decrirninalisation of homosexual genital acts, even those that are morally unacceptable. The law should always seek to protect young people and promote moral values that society recognises as wholesome. I urge Parliament to be cautious.
During the debate in the House of Lords last summer, the Archbishop of Canterbury indicated that he would have preferred the age of consent issue to be addressed within the context of a broader review of sexual offences. In supporting the intent of Joe Ashton MP's amendment on abuse of trust, the Archbishop regretted last summer's parliamentary timetable that produced an "unbalanced package".
We question whether the religious views of one section of the community, however sincerely held, can be used to justify criminal sanctions against young gay men.
|Appendix (not included)
contains supporting letters from the NSPCC, |
NCH Action for Children,
the National Children's Bureau,
and a Parliamentary Briefing from the Royal College of Nursing.