Scotland's children's commissioner thinks sex between 13 to 15-year-olds should be de-criminalised as part of a reform of rape and sexual assault laws

Tom Gordon, The Sunday Times, May 11, 2008

Scotland's children's commissioner is calling for the age of consent to be lowered to 13 for sexual partners of similar ages.

Kathleen Marshall thinks 13 to 15-year-olds who have sex with each other should not be criminalised.

Over-16s who have sex with a minor could still be prosecuted under her proposal, backed by the Family Planning Association, the Scottish Children's Reporter Administration, Barnados and the Brook Advisory Service.

Her comments are contained in response to a government consultation on clarifying laws on rape and other sexual offences.

The age of consent would remain at 16 in cases where significantly older men and women have sex with under-16s. But consensual sex between children aged 13 to 15 would be de-criminalised, meaning there would be no possibility of prosecution - although such cases could still be referred to the children's panel on welfare grounds.

It would also be legal for the relationship to continue after one turns 16, if the age gap was no more than two years.

“It is right to recognise the general vulnerability of 13 to 16-year-olds by maintaining the general prohibition on sexual activity, backed by the weight of the law,” said Marshall. “But I also welcome proposals to take a different approach to consensual activity between young people.

“It is perverse to use laws designed to protect children in order to punish the children themselves.” She added she did not want underage sex promoted.

Tam Baillie of Barnados said the changes were a “pragmatic response” to the reality of underage sex:

“Decriminalising consensual sexual activity for 13 to 16-year-olds would allow them to make best use of sexual health services and enable social care staff to legitimately exercise their judgment.”

Current prosecution policy means cases of consenting older children rarely come to court. But there are fears that de-criminalising sex between under-16s will send the wrong message.

The Christian Institute said de-criminalisation would be “extremely damaging”, undermining the work of 19th century reformers such as Josephine Butler, whose 18-year campaign to raise the age of consent from 12 to 16 was realised in 1885.

It said: “The recommendations are reckless and wrong. They would strip away essential legal protection for children.”

Alistair Stevenson of the Evangelical Alliance Scotland added:

“We do not believe criminal law has a role in promoting the sexual autonomy of children. Teens would be encouraged to engage in sexual experimentation, increasing teen pregnancy and sexually transmitted diseases.”

Criticism has also come from health and welfare groups including Rape Crisis Scotland, which said it was

“concerned that the proposed changes might potentially reduce the extent to which young people are protected and limit options for prosecutors”.

Proposed changes would also introduce male rape as an offence rather than cases being prosecuted under the less serious offence of sodomy. At present, the law says rape can only be perpetrated by men against women.