Sex, young people and the law.
The purpose of these guidelines is solely to protect young people aged 13, 14 and 15 from harm. The question of compliance with the law is a separate issue and is not addressed by these guidelines.
There are some points where the two issues are likely to coincide; for example, where a young person is at risk of harm as a result of sexual abuse. There are other points where they do not coincide; for example, where young people are involved in consensual sexual relationships and are not at risk of harm. (see: is it consent, is it abuse?)
Criminal law
The law changed on 1st December 2010 when the new Sexual Offences (Scotland) Act 2009 came into force. Under the new Act:
From 1st December 2010:
- It remains a criminal offence to be involved in any sexual act with someone who doesn’t give free agreement to it. The definition of free agreement has been set out. Someone can’t give free agreement, for example, if they’re too drunk to understand what’s going on, or if they’re under any sort of unreasonable pressure. They can withdraw their agreement at any time up to or during the sex act. The onus would be on the accused person to show they reasonably believed the other person had freely agreed to have sex.
- It is a criminal offence for anyone to be involved in any sexual act (sexual intercourse, sexual touching, kissing etc) with anyone under the age of 13 whether the young person agrees or not, on the basis that anyone under 13 lacks the capacity to give valid consent to any sexual act.
- It is a criminal offence for anyone who is 16 or older to have any kind of sexual contact with someone aged 13, 14 or 15. It is also a criminal offence for both girls and boys aged 13, 14 and 15 to have consensual sex with anyone else aged 13, 14 or 15. This applies whether they are the initiating partner or the consenting partner. This criminal offence where both are aged 13, 14 or 15 applies solely to penetration of the mouth, vagina or anus with the penis and to touching of the penis vagina or anus with the mouth. People in this age group participating in other consensual sexual acts are not committing criminal offences.
- It is a criminal offence for anyone in a position of trust in relation to anyone under the age of 18 to have any sexual contact with them.
- The Act includes some offences (showing drawings of genitals to a young person, for example) that might seem to criminalise people who provide sex education. Staff working in sexual health settings might worry that they could be charged with inciting or being involved “art and part” in an offence by (for example) providing condoms. However the Act includes specific exemptions. No criminal offence can be committed where people act solely to protect someone from sexually transmitted infection or pregnancy, to protect their physical safety or emotional wellbeing or to provide appropriate sex education (Part 4 and Part 7, Section 51 of the Act).
Civil Law
Civil law is just as important as criminal law, sometimes more so. The Human Rights Act, part of civil law, can “trump” other laws, including criminal laws, where there is a conflict between any law and the Human Rights Act.
Under the terms of the Human Rights Act, young people are entitled to similar levels of privacy as adults. A young person’s confidentiality can be breached but only where this is a proportionate response to the individual young person’s circumstances (see: Ethical Framework).
The Human Rights Act would not, for example, support a universal policy that allowed confidentiality to be breached simply because a young person was under sixteen and sexually active. Professionals considering breaching the young person’s confidentiality would have to consider the individual circumstances of the specific case and decide, in relation to this particular young person, that breaching confidentiality was justified and proportionate (see: Ethical Framework).
The UN Convention on the Rights of the Child gives children and young people the right to make their views heard and be involved in any decisions which affect them. The UK is a signatory to this convention.