Furtive fumbling behind the bike sheds is illegal under laws coming into force this weekend, even though the chances of schoolchildren ending up in court for it are remote. Why?
By Giles Wilson
BBC News Online Magazine
Flashing, voyeurism, cottaging, grooming - they are just some of the sexual practices facing tightened laws coming into effect in England and Wales from this weekend.
In debating the new Sexual Offences Act politicians and civil servants wrestled with many tricky problems of the correct role of law in modern sexuality. Dogging, for instance, escaped an explicit ban. But necrophilia (sex with a corpse) has not, becoming an offence for the first time.
In the government's efforts to protect children from abuse, however, the law also forbids under-16s from engaging in any sexual activity - ranging from "touching" to full intercourse.
Sexual touching, the Act says, includes doing it "with any part of the body", "with anything else", and "through anything". Depending on one's definition, that could technically include snogging as well as the gamut of sexual activities that teenagers often get up to. The guidance notes from the government say it could include "where a person rubs up against someone's private parts through the person's clothes for sexual gratification".
The most unusual aspect of this new law, however, is that the authorities have no intention of enforcing it. Police officers will not be snooping through school children's curtains to see if they are getting up to no good rather than doing their homework.
The government has told the Crown Prosecution Service (which makes the decision as to whether cases presented to it by the police should go to court) that it should not normally prosecute the under-16s for having consensual sex, let alone for "sexual touching".
Under the existing law, sex below the age of consent is illegal - but cases concerning children of similar ages only go to court in very unusual circumstances, such as where one of the participants has been exploited because of, for instance, learning difficulties. The new law does not seem to have clarified the position.
'It seems to say that sometimes the law means what it says and sometimes it doesn't'
The Home Office says legalising consensual sexual activity between children "would damage a fundamental plank in our raft of child protection measures".
"We are not prepared to do this," says a spokesman. "We accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it.
"We are putting safeguards in place to ensure that these cases, which are not in the public interest, are not prosecuted - by amending guidance to the police and Crown Prosecution Service."
He added that young people under 16 would have the same rights to contraception and sexual health advice as at present.
Saying what it means
But the move does not impress child rights campaigner Terri Dowty, of Action on Rights for Children. Laws should mean what they say, she says.
"It's astonishing that the government could consider legislation with the prior intent of issuing guidance to countermand it," she says. "I worry about the message it sends to young people - it seems to say that sometimes the law means what it says and sometimes it doesn't."
Police and prosecutors given advice on how to use new law
Professor Nicola Lacey of the London School of Economics is also unconvinced. "What the Home Office would say was that they wanted to use the criminal law for symbolic impact, to say that it's not a good thing for kids to be having sex.
"My counter-argument is that the criminal law is too dangerous a tool to be used for symbolic purposes.
"With this on the statute book, it will give police and prosecutors a lot of discretion. It could be used as a way of controlling kids who perhaps the police want to control for other reasons. Kids who perhaps are a nuisance or who belong to a group who attract the attention of the police in some way."
Terri Dowty also fears that private prosecutions could be brought by an aggrieved individual - perhaps an angry parent who didn't like their child's boyfriend or girlfriend.
The Crown Prosecution Service however says that in cases such as this, they could take over the private prosecution and then stop it, if that was felt to be the right thing to do.
Despite not wanting its new law to be used, the Home Office is, however, concerned that children can behave in a sexually abusive way to each other. "Adults do not have a monopoly on child abuse and we cannot assume that sexual relationships between young people will be fully consensual just because they are the same age."
Bullying or pressuring a child into having sex before they are ready to consent "can and does" happen, the spokesman said.
"It would be absurd for us to provide coherent sanctions to protect children from sexual abuse by adults but not by other children or
The government believes it has struck the right balance between acknowledging that sexual activity does take place between children, and protecting children from abuse. "This is a difficult and sensitive area in which the views of well-informed people of good intention are genuinely divided."
But Nicola Lacey suspects that efforts to apply the law would not be effective. "Even if they said they were trying to enforce it, don't these people have kids?"
Add your comments on this story, using the form below.
If the authorities are not planning to enforce this law then what exactly is the point? Parents should make it their business to know how sexually active their children are. This is not a matter for government or for the authorities. Every teenage couple is different and in each couple there will be different circumstances and levels of sexual maturity.
Cat, Exeter, UK
Irrelevant of whether this is the right approach to young people's sexual habits, I find it completely absurd that the law should say one thing, and mean another, criminal law should not be vague and variable. If you have broken the law, something should be done. If we are not intending to prosecute a "criminal" then they are either not really committing a crime, or there is something very wrong with our legal system.
Jamie Turner, UK
I think the best preventive measure to protect children is good family education, good parental guidance and sufficiently making children aware of sexual harassment and its consequences.
Mr. Yi Cheng, Malaysia
It's a great thing to have laws in place to make it illegal for one child to sexually abuse another child. I welcome this law completely with celebration, but how would it be enforced? Only if the agrieved child felt confident to go to the police. And many young people today don't feel this confidence, as they have had a bad impression of the police, either through past dealings or television portraits of the police. Children need to know that they will be believed, and this is the message that MUST be put over to children - that the abuse CAN stop and they WILL be believed.
Instead of focusing on sexual liberty and education, laws are written effectively making it more taboo, and more exciting for Under 16s to participate in these activities. I would be more in favour of better funding for projects to educate young adults about these issues.
I don't think this changes the law at all: under-16s can't legally consent to sexual activity. The authorities have previously failed young people who think that only applies to sexual intercourse. Lots of laws aren't policed strictly - 30mph speed limit is a good example -
because laws are basically guides to behaviour. Under-16s can choose
what they do in their private lives, but they should have correct and
clear guidance, and they're not getting it now.
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