This question has been circulating in the media since the comedian Russell Brand was accused of sexual assaults against multiple women, including someone who alleges she was sexually assaulted by Brand when she was 16.
The accuser ‘’Alice’’ (who has exercised her right to anonymity) alleged Brand (then 31) sexually assaulted her during an ‘’emotionally abusive and controlling’’ three-month relationship.
Alice alleges that Brand sent cars to her school to collect her from lessons so they could have sex at his home. She alleges that the comedian became increasingly controlling and encouraged her to lie to her family about their relationship.
Alice is campaigning for the age of consent to be increased from 16 to 18 years old.
What is consent in the context of sexual activity?
It is important to firstly establish the legal meaning of ‘consent’. Consent is an agreement between participants to engage in sexual activity. Consent should be clearly and freely communicated.
Why is the legal age of consent so important?
The minimum age of sexual consent is the age from which someone is deemed capable of consenting to a sexual activity. The purpose of the law is to protect adolescents being exploited, groomed, and abused by adults.
The current law
There is no international legal age for consent. In some countries like Nigeria, the age of consent is as low as 11 years old. In Austria the age of consent is 14.
In England and Wales, the age of sexual consent is 16 for both men and women. The age of consent is the same regardless of the gender or sexual orientation of a person and whether the sexual activity is between people of the same or different gender.
Under the age of 16, it is technically an offence for anyone to have any sexual activity, but the Home Office guidance is clear that there is no intention to prosecute teenagers under the age of 16, where both mutually agree and where they are of a similar age.
Children aged 12 and under are legally considered to be incapable of giving consent to any form of sexual activity. There is a maximum sentence of life imprisonment for rape, assault by penetration, and causing or inciting a child to engage in sexual activity.
Arguments for the age of consent to be raised to 18
A common argument for the law to be changed is that there is a lot of growth of maturity to be had between the ages of 16 to 18. Thus, an 18-year-old is more capable of consenting and is less vulnerable, compared to a 16-year old.
It is arguable that there is a significant power imbalance between someone who is 16 or 17 and significantly older partner. The law recognises those who are in a position of trust, like teachers and doctors, yet there is no recognition for other situations like the power imbalance in the allegation against Brand.
Lisa Durston from SARSAS (a charity supporting victims of rape and sexual assault), suggests that someone who is 16 or 17 ‘’is unlikely to have the life experience or knowledge of adult relationships to help them navigate their relationship’’.
Change of law relating to legal age for marrying
The legal age of marriage in England and Wales has recently risen to 18, after the enforcement of The Marriage and Civil Partnership (Minimum Age) Act 2022. This means that those aged 16 and 17 will not be allowed to marry or enter a civil partnership, even if they have parental consent. On the government website, when explaining the law change it states "The age of 18 is widely recognised as the age at which one becomes an adult and gains full citizenship rights." Therefore, it is arguable that these same principles should be used for the age of consent.
However, it is also important to not ‘’over-criminalise’’ adolescents’ behaviours. For example, increasing the legal age of consent could incriminate someone who is 19 having a sexual relationship with a 17-year-old.
If the age of consent does increase, will it increase the number of prosecutions for sexual offences?
Over the past four years, rape prosecutions in England and Wales have fallen to 70%.
So, it is arguable that even if the age of consent increased, we would not necessarily see a rise in prosecutions. Even if the law was changed, not everyone who breaks this law is charged with a crime and prosecuted, according to Rape Crisis. There is an ongoing issue with the amount of sexual offence reports leading to charges and then convictions. According to Rape Crisis, less than 2 in 100 rapes recorded by police in 2022 resulted in a charge that same year.
Therefore, it is important to question whether increasing the legal age of consent will remedy these issues or create more issues. Should parliament be looking at other means of redress?