Underage sex: The letter of the law

Where do moral decision become legal ones?

The role the law should - or can - play in dictating what happens in the bedroom has been a matter of debate for years.

It's is particularly in focus now with the news that two 12-year-old girls are pregnant, and the claims by a 14-year-old boy - responsible for one of the pregnancies - that he has slept with 10 girls.

Although underage sex is an especially difficult area for the law to have its desired effect, it is one where there are potentially high penalties.

The rules

The age at which girls can lawfully have sex is 16, but there are extra rules applying to the under-13s.

The law presumes that when a girl is under 13 she is not mature enough to consent to sex. So even if a 12-year-old girl willingly has intercourse, as far as the law is concerned, she has not "consented" to it because legally she is not able to.

(This concept is similar to the age of criminal intent, which assumes that children under 10 cannot commit crimes because they do not understand what crimes are.)

The implication of the rule is that anyone who has sex with a girl under 13 is committing what is termed "statutory rape". There is no defence to this charge - even if a boy says the girl was willing or that he thought she was older than she was, it would not matter.

The 14-year-old who has admitted making his 12-year-old girlfriend pregnant

If found guilty of statutory rape, the maximum sentence is life, but average sentences for rape are between five and seven years.

In reality, though, a number of different factors will come into play, said Nottingham Trent University law lecturer Liz Rodgers.

"Given the age of the child or the offender, the police are probably not going to want to go that far. There's a lot of debate saying 'It's terrible', but when you're dealing with individuals and bringing the law to bear especially on a younger age group, it does tend to get quite grey," she said.

Even if the police did refer it to the Crown Prosecution Service, it may then be thought not in the public interest for a prosecution to take place.

But she said it was interesting that until 1927, the age at which girls could get married was 12.

The under 16s

So what would be the case if two 15-year-olds were having sex? Again, going by the letter of the law, it is illegal for them to do so. But again, there is a grey area.

Judges: What is their role?

"There's a major difference between two 15-year-olds heavy petting and an adult having sex with an underage girl or boy," said Ms Rodgers.

The law in these kind of cases not widely enforced. Even if the police did for some reason get involved in a case, they may well decide not to proceed with it, and the CPS may stop the case on public interest grounds.

But as it is a grey area, the individual circumstances of the case are going to be what is conclusive, and the law does some times get involved. In March of this year, an 11-year-old boy was placed on the sex offender's register for three years for sexually assaulting his two-year-old cousin.

Parents are in a difficult position. If they are aware of their underage children having sex they could theoretically risk prosecution for aiding and abetting the unlawful intercourse.

This might particularly happen if they permitted the sex to take place in their house, or if they said: "Well, if you're going to do it, here's a condom."

Ms Rodgers said: "It's very difficult to convict [parents] for that - if kids want to do it, they're going to find a way to do it."

But there is a possibility in the future that parents could be subject to a parenting order, a new measure introduced by Home Secretary Jack Straw to make parents have some responsibility for crimes committed by their children.

Jack Straw: Order a possibility

But this new order only applies where a crime has been proved, and is really designed to address anti-social behaviour such as vandalism and theft.

But Ms Rodgers said a parenting order, perhaps instructing parents to discuss sexual responsibility with their children, might be seen as a positive response.

Doctor's orders

And how about doctors? If a 12-year-old girl went and asked her GP about contraception, what would be the doctor's responsibility?

GPs: Judgement is theirs

The law here is governed by the House of Lords ruling in the Gillick case, in which Victoria Gillick challenged government advice to doctors that it was all right to prescribe contraceptives to the under 16s.

A BMA spokeswoman said: "If a child goes to a doctor for advice they are entitled to confidentiality if they are mature enough to be taking decisions about their own health.

"That is for the doctor to assess. The older a child gets, the greater must be the presumption in favour of confidentiality.

"If a doctor suspects child abuse, however, there is a legal obligation to protect that child from abuse."

The E-cyclopedia can be contacted at [e-mail]